Diminished value case new development

I was going to move on to another diminished value claim, but there is an interesting development in Dan’s diminution of value case that shows how difficult a diminished value auto claim can be. Remember that Dan’s attorney tried to appeal the case from the small claims level to the trial court level but missed some deadlines, and I filed a praecipe (a notice) to strike the appeal. Well, Dan’s insurance company filed some papers to reinstate the appeal. The procedure to do so is pretty clear. To reinstate the appeal one has to file a motion to reinstate. Motions have specific forms to follow; it’s not just a letter to the judge. This has nothing to do with Pennsylvania diminished value law, or diminished value claims at all. It has to do with the Rules of Civil Procedure and local court rules. Dan’s new attorney filed something called a “Reply to Praecipe to Strike Appeal.” They cited law, had a moderately long legal brief, a proposed court order for the court to sign to re-instate the appeal. But it was not a motion in the strict sense because it didn’t follow the specific format for a motion. After I read it I realized that the law was actually on my side, not theirs, and that Dan’s new attorney had selectively pick old or inapplicable cases. So, I replied with my own legal brief, pointing out along the way that Dan’s new attorney had violated the local court rules by failing to follow the strict rules for a motion. I was hoping to get their Reply to Praecipe rejected and the appeal denied. However, I just got an order from the judge that states he will not consider the matter, because Dan’s new attorney did not follow the guidelines for a motion. So we’re not quite back to square one, because we have a judgment against Dan that has not been effectively appealed, and Dan is insured but his insurance company refuses to pay the insurance money on the judgment. Legally, Dan is entitled to his judgment, $8,000.00, but his insurance company refuses to pay up. I can go after Dan personally, but that takes time, costs money, and shouldn’t be necessary because he has insurance. Still think Claims for auto property damage or diminished value car claims are easy? It’s bee n months since we won our case, and we haven’t been paid a penny. In my next installment, I’ll review any developments in this case, or if nothing happens, move on to another Pennsylvania diminished value claim for auto damages from my files

So Dan’s attorney appealed, and we didn’t get paid our diminished value claim yet. The appeal went from the District Justice to the trial court. In other states the District Justice would be referred to a small claims court, District Magistrate or a people’s court. They are courts that deal with claims involving relatively small amounts of money. In PA these courts hear claims up to $12,000.000, for a variety of claims, including auto diminished value. However, the attorney missed a few steps, so I filed a notice to strike the appeal (in PA a notice like this is called a Praecipe). At this point, there are no “fill-in-the-blank” forms to use like the District Justice has and no one at the courthouse to help you. There are papers that must be filed, and deadlines that must be met. As a perfect illustration of how technical this is, Dan’s attorney missed a few critical steps, and as a result we have a chance to stop his appeal in its tracks and enforce the judgment we got from the District Justice on the auto claim for diminution of value. However no decision has been made yet. In my next post I’ll move on to another diminished value case. But and important point is that on appeal, we're not dealing with auto diminished value law, but the rules of civil procedure, which have nothing to do with diminished value.

In this case, Vic was struck by a vehicle owned by Carmella and driven by Dan. For the sake of simplicity, let’s assume that it was not Vic’s fault in any way. So who does Vic make a diminution of value claim against? Dan was driving, but he was driving Carmella’s car. Let’s look at the possibilities. If Dan had the permission of Carmella then her insurance might cover Dan while he was driving her car. That presents a source of recovery for the auto property damage. But, what if he didn’t have her permission or if he wasn’t covered under her policy? You could sue him and there would be no insurance coverage, and to collect you’d have to find some of his assets. You’d have to pay for an investigation of his assets, pay the sheriff to find, seize and sell his assets, and hope they were worth something. On the other hand, Dan was doing the driving, but we don’t know if he had a car, or if he did, if he has insurance. If we make a claim against Dan, and he has a car with insurance, his company might claim that they are not primarily liable because there’s another insurance policy on a vehicle that was actually involved in the accident. The same is true if you make a claim against Carmella. Her insurer could say that she wasn’t involved in any way with the accident or that he policy didn’t cover Dan. Either way, there’s no clear path for this PA auto damage claim. This is not an unusual outcome in cases like this. Sometimes there are multiple policies, and sometimes multiple vehicles. So, you can sue all the vehicles and all the owners and drivers. That has repercussions, too, and this case is a perfect illustration. If you have multiple parties, you are not only fighting them, but they are fighting each other. Reaching an agreement among them is nearly impossible because everyone is pointing a finger at everyone else. We found Dan’s car and insurance, Carmella’s car and insurance and sued them both for a diminished value claim in Pennsylvania. Carmella’s insurer refused to pay anything towards the settlement and tried to put it all on Dan. Dan’s insurer refused to pay a reasonable amount for a full settlement of the diminution of value, offering only part of the damage as his share, and wanted Carmella’s insurer to contribute something, which they refused to do. So we were forced to get a court date. At the hearing, Carmella showed up, with her attorney, and presented a policy exclusion that excluded Dan from coverage under her policy. Dan didn’t show up, but his insurance company attorney did, and refused to settle “on the court house steps.” We had a hearing and won the full amount that we demanded, plus court costs. But Dan’s insurer appealed, because they didn’t want to pay the full damages by themselves.

The second mistake of diminished value claimants

The second mistake most do-it-yourself claimants make is to give the diminished value report to the insurance company that they want to pay the claim. Obviously, the claimant has to back up his claim with something, but once the report is submitted to the insurance company, it sets the ceiling for the negotiations that will occur. If the do-it-yourselfer takes the first diminished value report he gets and gives it to the insurance company there’s no chance of demanding more than that. Once the insurance company gets it they will do one of three things. They will reject the claim entirely, make a low ball nuisance value offer or they will ask to inspect the vehicle to get an opinion of their own. In the first two instances, giving the diminished value report to the insurance company hasn’t hurt you, because they are ignoring it. So, giving it to them didn’t really create a ceiling for the negotiations, because they aren’t negotiating based on the report. However, in the third situation, they will have their own expert look at it, and invariably come up with a value that is a fraction of yours. If any compromise is to be reached it will be somewhere in the middle and by providing them with an “opening bid” that’s not the most favorable for you, you just lost some negotiation leverage. In my next post, I’ll address the questions of who to make the claim against and which court to go to if you must go to court.