South Carolina Property Arbitration for Depreciation, Loss of Use, & Actual Damages

I have always threatened to take an insurance company to arbitration over their ridiculous offers but never had a client that could afford to take the time and roll the dice on a Battle Royal. Ask and you shall receive. *(see a recent update on this article at the bottom).

Today, I partook in my first property arbitration over depreciation, or diminution of value, due to an automobile wreck and subsequent repair of their vehicle.  This was my first because, as an attorney and business venture, it is not worth the time, effort, or eventual outcome to pursue such action, especially when there are personal injuries that arise out of the accident. The personal injury claims are a much more valuable and worthwhile effort for attorneys to assist. However, I did this one pro bono, gratis, and/or "for free". Although I did not gain financially from this venture, I was able to gain through experience.  A much more valuable weapon against evil insurance companies.

With most every car accident arises two causes of actions

  1. Property Damage: A claim for property damage can be in the amount of actual damages (repair costs), loss of use (not having your car/having a rental), and depreciation/diminution of value (the value of your car before vs. after the accident-given that it was in a wreck); and
  2. Personal Injury: Any injury sustained as a result of the physical, mental, and/or emotional impact of the accident, or trauma.

In my case, the plaintiff had her brand new, candy apple red convertible slammed into by a dump truck.  The defendant did not dispute that they were at fault.  The defendant repaired the vehicle and provided a rental but when the plaintiff inquired about depreciation due to the stigma of the car being in an accident, the insurance company said they did not recognize such damages. WHICH IS BULLSHIT and ILLEGAL.  Insurance companies don't make money paying it out, they make money keeping it.  

The highest offer the defendant made was only a couple hundred dollars to my client, even after I became involved.  At arbitration the plaintiff was awarded almost triple the insurance company's highest offer and it was the insurance company's expert testimony that helped the arbitration panel make their determination. 

Why would an insurance company drag this out and only offer a few hundred dollars? That would be because 80-90% of you will go away and the 10-20% that fight them are cheaper to pay off than the 80%.  It is a numbers game. The more you roll over to the insurance companies, the more money they make, and the more they laugh at you. Don't let them laugh at you, fight back!

You don't have to be an attorney to request an arbitration hearing or to file a claim in small claims court. Please go to this link to learn more:

http://www.doi.sc.gov/consumer/auto.htm

South Carolina allows for persons to request an arbitration through S.C. Code Ann. 38-77-730:

 

SECTION 38-77-730. Request for arbitration; no formal pleading and process; arbitration docket; filing of claim; service of summons to defendant.

(a) Any person who is a party to the disputed property damage liability claim may submit his claim for determination through arbitration. No formal pleading or process is required. The clerk of court of each county shall prepare and keep an arbitration docket and set the cases thereon for arbitration as provided by law for the settling of cases in the court of common pleas.

(b) The claim must be filed with the clerk of court in the county in which the cause of action arose or where the plaintiff or defendant resides. The claim must be filed in triplicate with the clerk of court on forms to be provided by him. The forms shall set forth the names of the parties, the date and place of the accident, and the amount of property damage claimed. The clerk shall file one copy in his office, and one copy must be served upon the defendant as provided by law for service of summons and complaints. The sheriff, or such other person, shall promptly serve the claim upon the defendant and shall receive the sum of five dollars to defray the cost of securing this service. The sheriff, or such other person, serving the process shall promptly file an affidavit of personal service with the clerk of court on forms to be provided by the clerk.

(c) There must be attached to, or made part of, the form a summons to the defendant named notifying him that he should file a response with the clerk of court within thirty days from the date of service and that failure to file a response within thirty days entitles the plaintiff to a default judgment. The form must be signed by the party filing it or his attorney, if any, and shall by order of reference show the address of the person signing it.

 

 

SECTION 38-77-740. Hearing; notice to parties; damages to be awarded; securing attendance of witnesses.

(a) The court, or the clerk acting for the court, shall assign the arbitrators to hear the matter at the courthouse, or other designated place in the county where the claim is filed, within sixty days after the date of filing, or as soon thereafter as is feasible. The clerk of court shall, on a form provided by him, advise the parties or their attorneys of record, if any, by mail as to the place, date, and time of hearing and shall advise the parties to bring all records which may pertain to the claim, including, but not limited to, the following:

(1) Two estimates of damage to the motor vehicle or its contents signed by the estimator.

(2) Signed receipts for car repairs.

(3) Bills or receipts for other property damages claimed.

The forms shall also contain notice to the parties that, if they cannot attend because of illness or otherwise, the clerk of court must be notified as soon as possible with the request that another date be set for the hearing.

(b) Property damages must be awarded as provided by law, including, but not limited to, actual damages, loss of use, depreciation, and any other property damages which are the direct and proximate result of the accident.

(c) The parties may secure the attendance of witnesses by their voluntary appearance or may secure their attendance by subpoenas prepared and issued in accordance with the laws of this State.

 * Modified on December 21, 2009:

Don't think being an attorney affords you any differences when dealing with insurance companies. I recently had to go through the same process with an insurance company as a result of a property damage claim. They forwarded me a check significantly lower than the actual repair costs, rental car invoice, and depreciation. I requested an explanation within 7 days and received none. I filed arbitration pleadings in the proper county and had an offer almost double the initial amount within 3-4 days.  Don't play around with them. File the arbitration papers for $5.00 and then send them an original copy with a reasonable demand.

Trackbacks (0) Links to blogs that reference this article Trackback URL
http://www.scinjurylawjournal.com/admin/trackback/169434
Comments (9) Read through and enter the discussion with the form at the end
Don McNutt - January 18, 2010 1:22 PM

I went to the South Carolina Department of Insurance and found their flyer for Automobile Insurance Arbitration. In the section under how to begin the process it states that the complaint is against the at-fault party not the insurance company. How does that work?

Trey:

You name the at fault, or responsible party, not the insurance company. The insurance company will stand in place for the at fault party but is not directly named. Always put the name of the offending, or at fault party, as the defendant. Unless of course, the insurance company did something in bad faith.

http://www.scinjurylawjournal.com/2010/01/articles/insurance-1/why-is-the-insurance-company-not-named-as-the-defendant-in-the-lawsuit/

Mike - March 10, 2010 1:43 PM

Trey, what constitutes a bad faith claim, under pd ? Many new "internet" ins companies do not have resident adjusters now, and are denying obvious liability cases making people file with their ins co, and then let their ins co subrogate to get, hopefully, their deductible back!, does this not constitute bad faith?, if so, are the penalties usually not severe?

Mike,

S.C. Code Ann. 38-59-20 outlines Insurance Claims practices and essentially what constitutes "bad faith" on the part of insurance companies. You should review this, contact the S.C. Dept of Insurance to make a claim, and always file arbitration in property disputes that seem outrageous. Well worth the $5 filing fee.

Thanks,

Trey

See these websites:

http://www.scstatehouse.gov/code/t38c059.htm

http://www.doi.sc.gov/consumer/auto.htm

mary - March 26, 2010 10:18 AM

Could you help clarify which court forms are used to file the arbitration hearing request? I am located in Charleston County, if that matters.

Thanks for your help -- this article has been an invaluable resource for me and, I'm sure, many others.

Mary,

You can go to the Common Pleas court in your county and ask them for the form. Have $5 ready for the filing fee. There are some SC Judicial Forms you can use as well.

http://www.judicial.state.sc.us/forms/pdf/SCCA202.pdf

Mark - June 3, 2010 2:37 PM

Trey,
This is a very timely discovery of this post for me. I've just received notification of arbitration on behalf of my insurance company against the insurance company of the at-fault party (as found by the police when investigating the scene and by the adjustors who have totaled my vehicle). The at-fault party's insurance company contended (by inaccurate statements) that 50% of the fault rested against myself. I intend to start the process for property damages against what the vehicle value was estimated at by the insurance adjustors and what the remaining cost of my loan was. Would you consider this a worthwhile effort? I've had some naysayers, but I'm really of the opinion that getting hit from behind at a red-light (while stopped for at least a minute) is NOT 50% my fault.

Andrew - August 3, 2010 6:42 AM

My vehicle (a 2006 Corvette convertible) was involved in an auto accident in SC. I wasn't in the vehicle at the time. The extent of physical damage to the car as a result of the accident has not been determined yet, but it is not severe. I just had it towed to a collision place for evaluation.

How do I determine and document diminution of value? i.e. How do I figure out what impact the accident history has on the resale value of the vehicle in fully-repaired condition?

REPLY: By asking experts in the subject matter in question and having them put into writing their opinion of the difference in price and having this document with their signature notarized.

Sue - August 5, 2010 8:55 PM

I was rear ended in my brand new corolla with less than 2500 miles. Repair is done but I have been fighting State Farm.

They finally got to $3100 in diminish value, but the problem is when I took the car to CarMax, they are willing to give only $9000. Clean trade in is $14,250 and rough trad in is $12,200, so I feel they should give me $5,250. Repair bill was around $6,500. Do you think I will come out better by going to arbitration court? If I do go, can I also ask them to compensate me for the time I spend and all the stress they have put me through?

I do have an injury claim, but I am in process of settling that.

Thank You

Theresa O'Hara - September 22, 2010 7:18 PM

I was hit by a drunk driver who was considered at fault for the accident. His insurance company wants to inspect my car
and take a statement. I understand that I am not obligated
to give them a statement, but wonder if by refusing will they refuse to pay for my vehicle's damage. How exactly do I
handle this.

Robert Wolenski - July 7, 2014 10:03 AM

In South Carolina, is there a specified amount of loss of use per day you are entitled to for auto claims by law?

Answer:

No specified amount I am aware of in writing other than an affidavit from a local car rental manager indicating his average rate. Allstate tries to say their loss of use rate is $15/day while other companies use $25/day. I have frankly never been able to rent a car for one day regardless of how small it was for either of those amounts.

I think a 3 attorney property arbitration panel would agree but would need some additional documentation.

Hope that helps.

Sincerely,

Trey Mills
www.trammellandmills.com

Donald McGraw - July 17, 2014 12:46 PM

I have filed for arbitration and received the answer. GIECO refuses to pay. They do have a lawyer now and the defendant was sited for failure to yield. At the end it states that he admits being in an accident but denies any other obligations. The answer states June 2, 2014 but the accident occurred on June 3, 2014.

ANSWER:

Not sure on your question but not unusual. GEICO doesn't make money giving it away. They make money keeping it from you as long as they can.

Post A Comment / Question Use this form to add a comment to this entry.







Remember personal info?
Send To A Friend Use this form to send this entry to a friend via email.