Can an insurance company claim only 20% fault and pay only 20% of my total lost vehicle?

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Can an insurance company claim only 20% fault and pay only 20% of my total lost vehicle?

I was in a wreck with a delivery truck that was blocking the roadway on a blind hill. The truck was sited for being illegally parked in the roadway. The insurance company only wants to pay me 20% of my total lost vehicle that I just bought 4 days prior to the accident for $4,500.00 and the actual cash value exceeds $5,600. Also, their insurance adjuster declared total loss. They are offering me $1300 for 20% fault and not even pay me for my tow bill.

Asked on January 6, 2012 under Accident Law, Washington

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Presumably, you are talking about the truck's insurer--you own insurer, if you had collision insurance, should pay you the full amount.

If it's the truck's insurer and they are making you an offer under the truck's liability policy, then they will reduce the amount they offer to pay by the percentage or degree by which they believe you are at fault. This is based on the notion of "comparative negligence"--generally speaking, when an accident case goes to court, the amount the plaintiff wins is reduced by his degree of fault.  That is, if they believe that you were 80% at fault in causing the accident and their insurered only 20% at fault, they'd offer you only 20%.

You do not have to agree with them--if you feel their insured was more at fault, you may reject their settlement offer, sue the truck's driver and/or owner, and try to prove in court that he was more  at fault--and so that you should receive more money. The insurer is simply making you an offer--it is legal for them to offer anything they like. You, again, are not required to accept it, but may instead go to court. Before doing this, consider though, very dispassionately, how much you were at fault--were you driving too fast? Texting or on the cell phone? Not paying attention (e.g. you didn't see a big truck in plain sight)? These factors would tend to indicate fault on your part. On the other hand, if you believe you were driving safely and not a fault, that would tend to argue for going ahead with trial, unless they make a better offer.


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