What’s My Car Worth? Negotiating Total Loss Insurance Claims in Virginia
As Virginia personal injury and wrongful death attorneys, our clients often ask us—how much is my car worth? How do I negotiate the value of my vehicle with the insurance company? Am I still entitled to a rental vehicle from the at-fault driver even if my vehicle is a total loss? Surprisingly, the vehicle/property damage claim is the top priority for many clients and the injury claim is sometimes an afterthought. Even if the client suffers a catastrophic injury, they still worry about how their family will get from place to place without their primary vehicle.
We represent clients who have sustained personal injury or wrongful death due to Virginia car, truck, or motorcycle crashes, but we also regularly provide guidance to our clients who are negotiating their total loss insurance claims. This article provides five tips and tricks and what you need to know when negotiating a total loss insurance claim arising from a Virginia motor vehicle collision.
1: You are entitled to the fair market value of your vehicle immediately before the crash, not what the insurance company says your car is worth.
Under Virginia law, a vehicle is generally deemed a total loss when its “estimated cost of repair exceeds 75 percent of its actual cash value.”[1] “[T]he measure of damages [for a property damage claim] is the difference between the market value of the property immediately before and immediately after the property was damaged.”[2]
First and foremost, to ensure that you get the best offer for your vehicle, it is important to make sure that the insurance adjuster has any and all documentation that supports the value of the vehicle. Take good photographs of the vehicle (including a photograph of the odometer reading). If possible, remove personal items and clean the interior of the vehicle before taking the photographs. If you purchased the vehicle just before the crash, then provide the adjuster with the photographs from the dealer’s listing. Additionally, send the adjuster’s recent maintenance records, recent service records, and any documentation that reflects any upgrades that were made to the vehicle. After providing all of the relevant documentation, you should receive a settlement offer.
To determine whether the total loss settlement offer is fair, a good place to start is by researching the value of your vehicle using an online tool like J.D. Power or Kelley Blue Book. If the offer is above the J.D. Power or Kelley Blue Book range (or at the very high end of the range), then the insurance company’s offer is likely fair, unless you have made significant improvements to the vehicle.
If the offer is below the J.D. Power or Kelley Blue Book value, then you can send the insurance adjuster those values and ask them to increase the offer accordingly. If you receive pushback from the adjuster about the validity of the J.D. Power or Kelley Blue Book value, then send them a copy of Virginia Code § 8.01-419.1, which provides that the “J.D. Power Official Used Car Guide” and “any vehicle valuation service regularly used and recognized in the automobile industry” is “admissible as evidence of fair market value.”
2: Carefully review the market valuation report, and research your own comparables.
Insurance companies hire other companies, such as CCC ONE, to assess your vehicle’s value. Generally, the insurance company will provide you with a market valuation report when they make you an offer to settle the total loss claim. If the insurance adjuster does not provide you with the market valuation report when they make you an offer, then ask them to provide you with documentation supporting the offer, and they should provide the market valuation report. Below is a screenshot of a market valuation report.
It is important to review the market valuation report carefully. Often, the information contained in the report is incorrect. Double-check the report to ensure that all of your vehicle’s information and features are correctly listed in the report.
Most importantly, double-check to make sure the listed mileage is correct because this is one of the main variables that determine your vehicle’s value. Recently, one of our clients received a market valuation report where the mileage listed in the report was more than 100,000 miles over the vehicle’s actual mileage. We reviewed the report for the client and discovered that the appraiser had mistakenly used the number written on the back windshield as the mileage when that number was just a random number the tow yard had written on the vehicle for inventory purposes. If the mileage error was not caught and brought to the insurance adjuster’s attention, then it could have cost our client thousands of dollars.
Often, insurance adjusters are beholden to their market valuation report, and J.D. Power or Kelley Blue Book values do not persuade them to increase their settlement offer. If the adjuster is taking this approach, then you can do your own research using websites like Cars.com or Autotrader. Insert your vehicle’s information and then search for comparable vehicles in your area. After locating the highest valued comparables, write down the VIN number for the comparables and see if they were considered in the original market valuation report. If not, then send the comparables to the insurance adjuster and ask them to be added to the market valuation report. This tactic can help you obtain hundreds or thousands more from adjusters who claim to be bound to the market valuation report.
3: Consider making the vehicle claim through your own insurance company, rather than the at-fault driver’s insurance company.
Let’s say you were involved in a crash where another driver was clearly at fault. If you have been negotiating with the at-fault driver’s insurance company, then consider processing the claim with your own insurance company instead. Generally, your own insurance company has less of an incentive to make you a lowball offer under these circumstances because they are planning to later get reimbursed by the other driver’s insurance company through a legal process called subrogation. I personally took this approach when a drunk driver recently totaled my unoccupied car, and my insurance company offered three thousand dollars more than the drunk driver’s insurance company. If you take this approach, then you may be concerned about your deductible, but in Virginia, 14VAC5-600-80(C) requires your insurance company to include your deductible in any subrogation demand that it makes to the other driver’s insurance company. Therefore, assuming the other driver’s liability is clear, your deductible should be quickly reimbursed by your insurance company (mine was).
4: Consider hiring an independent appraiser, which could increase the offer by thousands.
If the insurance adjuster is still making a lowball settlement offer for the total loss of your vehicle despite taking the approaches listed above, then consider hiring an independent appraiser. Our clients have had tremendous success using independent appraisers, and I have personally seen clients obtain thousands and thousands more for their vehicles by using an independent appraiser (even after considering the cost of the independent appraiser). Independent appraisers can add lots of value if you have a luxury or collectible vehicle.
5: You are entitled to a rental vehicle from the at-fault driver’s insurance company, even if your vehicle is a total loss.
I often hear that property damage adjusters for the at-fault driver’s insurance company are taking the position that they do not have to provide a rental vehicle when the victim’s vehicle was a total loss. In fact, the drunk driver’s insurance company took this position when I recently had to file a claim for my car. This position is incorrect.
Virginia Code § 8.01-66(A) specifically provides as follows:
“Whenever any person is entitled to recover for damage to or destruction of a motor vehicle, he shall, in addition to any other damages to which he may be legally entitled, be entitled to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle. However, such rental period shall not exceed a reasonable period of time for such repairs to be made or if the original vehicle is a total loss, a reasonable time to purchase a new vehicle.”
In other words, when your vehicle is a total loss due to a negligent driver, you are entitled to the costs you incurred to obtain a comparable rental vehicle for a reasonable period of time to allow you to obtain a new vehicle. If the insurance company tries to say that you are not entitled to a rental, then cite this code section and also point to Virginia Code § 8.01-66(B), which provides that the insurance company’s failure to provide the rental vehicle in good faith could subject the carrier to a penalty “in the amount of $500 or double the amount of the rental cost [you are] entitled to recover . . . whichever amount is greater.”
Conclusion
If you have a total loss insurance claim arising out of a car crash, then chances are you have a personal injury claim too. Unfortunately, catastrophic injuries often accompany crashes that result in the total loss of a vehicle. It is not uncommon for serious injuries to go unnoticed at the scene of a crash. First responders often assess a crash victim’s ability to breathe, walk, and talk. Obvious injuries, such as broken bones or serious bleeding, are usually assessed and treated appropriately. However, less obvious injuries, such as traumatic brain injury, may not be appropriately assessed because the damage is internal. Adrenaline kicks in after a crash, which can lead a person to decline medical treatment, even if they are confused, disoriented, “out of it,” and have a headache. We have recovered millions of dollars for clients who initially thought they were just a little “shaken up,” but within a few days, they discover that they are suffering from the symptoms of a life-changing traumatic brain injury. This is why it is imperative to seek medical care as soon as you notice any new symptoms after a car crash.
If you think you may have a personal injury claim arising from a car crash, please do not hesitate to contact us for a free consultation. We are passionate about pursuing the maximum available recovery from negligent drivers and their insurance companies. Even if the negligent driver did not have any insurance, you may still have a claim under the uninsured motorist coverage of your insurance policy. Unlike many property damage claims, personal injury and wrongful death cases are complex and necessitate the involvement of an experienced Virginia personal injury or wrongful death attorney.
[1] See Va. Code § 46.2-1602.1.
[2] Averett v. Shircliff, 218 Va. 202, 207 (1977) (emphasis added).
