Suing for diminished value in small claim court

[Bill Mee]

Jurisdiction

New Hampshire

I am in New Hampshire. My 2018 Tesla Model 3 with 55k miles was hit by a commercial truck in the front due to the truck driver's negligence. Since everything was captured on my dashcam, the company that owned the truck owned up to the accident and its insurance paid for the repair. Note: I went through my own insurance and had it deal with the truck's insurance company (let's call it Cape Cod, although based in Maine). The total bill of the repair was over $12k. After I got the car back from the shop, I got the contact info of the adjuster at Cape Cod handling my case from my own insurance company, called her, and asked her about filing a diminished value claim. She said she would convey my intention to file a claim to the person who specialized in DV and that person would contact me.

I did some research on my own while waiting for the DV person to contact me. I got quotes from Carvana (one for accident-free and one for one-accident), got estimates from Kelly Blue Book (likewise), and also looked at prices of used 2018 Model 3 at edmunds.com with no or one accident to get a full picture of how much reduction in selling price an accident would incur. I concluded that the average reduction from those three sources was close to $3k.

About four weeks after I called the adjuster, I got a check of $450 in the mail from the Claim Director at Cape Cod, stating that based on the accident the car sustained (minor!?), and the age/mileage of the car, that's what they determined the DV should be.

I replied with a letter stating that $3k should be the DV, or I would be taking legal action to protect my interest. I also provided the info and links to the research I did as the supporting evidence. The director came back with $900. With this new offer, I cashed the check, and I replied that I'd be willing to settle for $2.5k. The director replied back, stating $900 was their best and final offer.

I am leaning towards suing Cape Cod for the $3k DV in my local small claim court using the data I gathered, because the difference between $900 and $450 is something I am willing to give up to potentially receive a significantly higher compensation.

To all the gurus here: Does this sound like a dumb/must-lose move to you? If not, your advice on preparing for the court/beefing up my case would be appreciated. Thanks in advance!

 

[adjusterjack]

Here's the problem.

The first $450 was a "gimme," sent to you without any discussion or negotiation on your part.

The $900 was the result of negotiation and you accepted the settlement and deposited the check. You could be bound by that settlement (even if you didn't sign anything).

Consequently, any lawsuit you file is likely to be dismissed since you already settled for the additional $900.

If you wanted the full $3000 you should have declined both payments and sued for the entire $3000.

You don't get to keep going back every time you get a check.

I think a judge will take a dim view of you trying to extort more money by litigating.

Now if you want to send back the entire $1350 and sue for $3000 you might have a chance.

That's my two cents worth.

 

[Bill Mee]

Thanks for your reply, @adjusterjack. Let me clarify.... I didn't cash the first check ($450) until they came back with the $900 number (without a check). I thought $900 was the new lower bound so I decided to cash the $450 check.

Also, their $900 offer is the total, not on top of the first $450.

 

[adjusterjack]

Yes, you do have to be more clear.

Let's see if I have this right.

You received the $450, didn't cash it, were offered another $450 for a total settlement of $900.

You accepted the total settlement of $900 by cashing the first $450.

I think you are done when the second $450 arrives.

 

[Bill Mee]

You accepted the total settlement of $900 by cashing the first $450.

I did cash the check when they offered $900, but I rejected the $900 settlement by registered-mailing Cape Cod and offering to settle for $2.5k. They USPS'ed back two weeks after I cashed the check, repeating the $900 offer, and again no second check. That's where things stand.

 

[adjusterjack]

I rejected the $900 settlement by registered-mailing Cape Cod and offering to settle for $2.5k.

You keep adding new stuff to every response, that changes my responses.

I'm done.

Go ahead and file your lawsuit.

Be aware that NH allows attorneys in small claims court. You'll be up against an insurance company's attorney.

 

[Bill Mee]

You keep adding new stuff to every response, that changes my responses.

@adjusterjack My apologies. I originally thought that providing the numbers would be clear enough to show the back-and-forth between the two parties. In hindsight. I should have made clear that I never accepted their offers and always communicated with them using registered mail.

I'm done.

Please don't be. You are the expert in the area, and your advice is precious.

Go ahead and file your lawsuit.

Be aware that NH allows attorneys in small claims court. You'll be up against an insurance company's attorney.

Thanks for the heads-up. I figure if I have a case then I shouldn't be fazed by who's arguing on Cape Cod's side. Still, I have a couple of questions:

1. Do you still think the fact that I cashed that $450 check would weaken my case?
2. Can I add the filing fee to my claim?
3. If the judge ruled against me, would I need to pay for the legal expenses Cape Cod incurred to defend itself?

Thanks again!

 

[Tax Counsel]

To all the gurus here: Does this sound like a dumb/must-lose move to you? If not, your advice on preparing for the court/beefing up my case would be appreciated. Thanks in advance!

Before you go running to sue, read your contract with your insurer carrier because the insurance company will invoke every provision in it that favors it. In particular the contract may require you arbitrate the dispute rather than litigate it in court. If it has an arbitration provision that's the route you are likley going to be required to use.

 

[adjusterjack]

Before you go running to sue, read your contract with your insurer carrier because the insurance company will invoke every provision in it that favors it. In particular the contract may require you arbitrate the dispute rather than litigate it in court. If it has an arbitration provision that's the route you are likley going to be required to use.

OP's claim for DV is against the insurer of the truck that him. Repairs have already been paid for by his own insurer. If he can't make a satisfactory deal with the truck driver's insurer, he will have to sue the driver.

DV is not covered by first party auto insurance except in GA as a result of Mabry vs State Farm several years ago.

 

[adjusterjack]

1. Do you still think the fact that I cashed that $450 check would weaken my case?

I'm not sure. That they offered you another $450 could be an acknowledgment that the claim is still unsettled.

2. Can I add the filing fee to my claim?

Filing and process service fees get added to the judgment amount.

3. If the judge ruled against me, would I need to pay for the legal expenses Cape Cod incurred to defend itself?

No. In the American legal system each party pays its own legal expenses. There are rare exceptions but not in this case.

Oh, by the way, you would be suing just the driver that caused the accident, not his insurer, in case you weren't aware of that. His insurer can provide an attorney for his defense.

Read the NH small claims rules.

https://www.courts.nh.gov/rules-circuit-court-state-new-hampshire-district-division/small-claims-actions

 

[Bill Mee]

@adjusterjack Thanks for your answers and the link!

The truck was owned by a trucking company based in NH. When the truck hit my car, the truck was 'conducting business', as pointed out by the driver that the yellow lights on top of the truck were flashing. The insurance info he provided was for the truck company too. In this case, I should sue the trucking company, correct?

If I should sue the business, then according to the link you shared, I need to name a representative at the business. Should I put down the business owner's name or the driver's for that?

 

[Tax Counsel]

@adjusterjack Thanks for your answers and the link!

The truck was owned by a trucking company based in NH. When the truck hit my car, the truck was 'conducting business', as pointed out by the driver that the yellow lights on top of the truck were flashing. The insurance info he provided was for the truck company too. In this case, I should sue the trucking company, correct?

If I should sue the business, then according to the link you shared, I need to name a representative at the business. Should I put down the business owner's name or the driver's for that?

If the business is any kind of entity (LLC, LLP, corporation, etc) formed through the NH Secretary of State then it will have a registered agent in the state. That information should be included with the Secretary of State's registeration. If the business has a registered agent, that's who you serve. It makes the service a lot easier and by law proper service on the registered agent is good service to the business. If the owner is a sole proprietor, though, you do need to serve the owner.

 

[adjusterjack]

If I should sue the business, then according to the link you shared, I need to name a representative at the business. Should I put down the business owner's name or the driver's for that?

I would name the driver and the business.

Hire a private process server even if the court allows less formal methods. A private process server knows how to get it done right and file the appropriate confirmations with the court.

 

[Bill Mee]

If the business is any kind of entity (LLC, LLP, corporation, etc) formed through the NH Secretary of State then it will have a registered agent in the state. That information should be included with the Secretary of State's registeration. If the business has a registered agent, that's who you serve. It makes the service a lot easier and by law proper service on the registered agent is good service to the business. If the owner is a sole proprietor, though, you do need to serve the owner.

Thanks, @Tax Counsel. With your pointer, I have located the business's contact information in the Secretary of NH's database, as well as the name of its registered agent.

I would name the driver and the business.

Embarrassingly, I don't have the driver's name. Looking back, I didn't do the things that one's supposed to do at the scene of an auto accident, except getting the other party's insurance info-- I didn't call the cop; I didn't ask to see his driver's license; I didn't grab witnesses or take pictures of the scenes. The dashcam footage saved my ass. Do you think Cape Cod (or my own insurance company) must give me the driver's name/contact info if I ask?

Hire a private process server even if the court allows less formal methods. A private process server knows how to get it done right and file the appropriate confirmations with the court.

Thanks for this suggestion, @adjusterjack . If I read Rule 4.2 in the link you shared correctly, the court shall first use USPS first-class mail to notify the defendant. If that mail is undeliverable, I will definitely follow your recommendation to use a private process server.

One more question: I have never contacted the business regarding the accident. Do you think it makes sense to send them a letter (maybe cc Cape Cod) to let them know about the status of the DV negotiation and give them a heads-up that I'd be suing them if Cape Cod sticks with their current offer? By doing that, I hope the business may persuade Cape Cod to settle out-of-court if they are lawsuit-adverse (surprisingly, I couldn't find any case involving the trucking company and/or its registered agent in NH's judicial branch case access portal, given that the business has been around for 50 years).

Once again, thank you all for all the advice/pointers. They are super helpful!

 

[adjusterjack]

Do you think Cape Cod (or my own insurance company) must give me the driver's name/contact info if I ask?

No idea. Ask anyway.

Do you think it makes sense to send them a letter to let them know about the status of the DV negotiation and give them a heads-up that I'd be suing them if Cape Cod sticks with their current offer?

Don't bother. People who sue don't threaten. People who threaten don't sue. That's my theory.

Won't make any difference to the claim and you might get hit with a restraining order for harassment.

You're using the proper process. If you don't get what you want, file your lawsuit and have your day in court.