After an accident, should I be placed in the same state as I was before the accident if I’m not at fault and I have to use my own insurance?

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After an accident, should I be placed in the same state as I was before the accident if I’m not at fault and I have to use my own insurance?

I was in a car accident and the other driver was at fault but had no insurance. Now my car is being totaled and I was financing it. I have both uninsured motorist and GAP insurance. I also am suffering from neck and shoulder injuries. I feel like the my insurance company is not offering me enough, plus it looks like I may be out of a car.

Asked on December 22, 2016 under Accident Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you had collision insurance, they need to pay the then-current value of the car; if you had GAP insurance, they had to cover or pay the remaining unpaid balance due on the car; and if you had uninsured motorist coverage, they need to pay for your medical bills, lost wages, and "pain and suffering" (though this last element is highly subjective and difficult to prove or determine with any certainty), at least up to policy limits. This what you are entitled to, and if the insurer is not paying these things, you could sue them for breach of contract--that is, for not honoring their contractual obligation(s) as to what to pay you (since the insurance policy is a contract). 
However, this still may not make you whole: you are not entitled to compensation for your time or inconvenience, and if the sum of the collission coverage (fair market value) and GAP coverage (balance of financing) is less the cost of a new car, that's still all they have to pay: they don't have to buy you a new car.


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