Can I sue my insurance company and repair shop for non payment of additional damages?

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Can I sue my insurance company and repair shop for non payment of additional damages?

My husband had a wreck going 25 miles an hour in which he rear ended a car, his SUV died and caused him to roll downhill into the back of a second vehicle the brakes would not work since the SUV had died. The insurance company referred to him to a body shop for estimates and repairs. The body shop took pictures of the outside of the car, the grill, the bumper, etc… The guy opened the hood and looked in but did not take any pictures that we are aware of. The body shop sent the estimate and told the insurance company who agreed to pay the claim. The repairs were made. 3 months later, my husband was driving to the airport before dawn and hit some debris in the road. When he got to the airport, he realized that his gas tank was leaking so he tried to make it to the dealer but ended up having to be towed. When the dealership looked at the vehicle, they told him the gas tank was punctured but that they were looking at the length of the underside of the SUV to make sure there was no other damage and found the radiator was filled with oil. This led them to search further and they also found a blown head gasket and oil all in the system and told him that his radiator and engine would need to be replaced. They told him that the radiator and head gasket damage had occurred a while back and had it been caught when it happened, it would not have resulted in an engine replacement. The insurance company has denied the claim saying the radiator and head gasket damage was not a result of the wreck and that they are not liable for normal wear and tear on the vehicle. He has the vehicle serviced regularly and at the last oil change there was no damage and no leaking head gasket. They also check the fluid levels during oil changes so they would have known if there was oil in the radiator at that time. He keeps the receipts so we have a record of the maintenance. We are sure that the damage to the radiator and head gasket was from the impact of the first wreck. What recourse do we have? Would we have a case to sue the insurance company and the body shop for repairs of over 5,917.00 includes tax for the repair of head gasket, radiator and engine plus the 500. deductible of initial repairs from the wreck since the repairs were not found/made by the body shop chosen by our insurance company?

Asked on December 3, 2017 under Accident Law, Alabama

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You could sue both, but to win would have to prove that the damage was caused by the accident: if it was, it should have been covered under the terms of the policy (and so the insurer would have committed breach of contract--an insurance policy is a contract--by not paying for it) and/or should have been caught when the car was in for repairs from the accident (and so the repair shop would have potentially been negligent, or careless, in not finding and fixing the damage). But the key is, you must *prove* the damage came from the accident and not at some other time. This means more than just your maintenance receipts, since those do not themselves prove that the damage did not pre-exist--they may suggest that or help support other evidence, but since routine servicing may be done without spotting damage or problems, they do not prove it. (Further, even if the car was damage free at the last maintenance, the damage could have still occured at any time after that, including after the car was repaired from the accident.) Rather, you would need some automotive expert to examine the car and the damage (e.g. the radiator and gasket) and create a report (and testify in court, if necessary) that in their professional opinion, for the following stated reasons, they believe the damage occured during the accident and at no other time. Unless you have expert testimony like that--which you'd have to pay for, of course; experts do not and are not required to testify for free--you will not be able to prove that the damage came out of the accident and not at some other time.
Even with that testimony, you may not win: the court will weight your evidence and any evidence put on by the insurer or repair shop, such as what the mechanics at the repair shop concluded when they saw the damage, and decide who is more credible--but at least if you can find an automotive expert who will offer the opinion for litigation that the damage came from the accident, you *might* win.


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