Quote:
Originally posted by Tump
If I ever get there, I believe good faith would be on my side, since: 1) as an attorney I would never settle for so little without an explicit agreement; 2) which in this case case was spoken by me and accepted by the ins. co., after 3) I had repeatedly encouraged the ins. co. to have its attorneys either negotiate or put that agreement in writing.
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Marc: I don't get to the same conclusion, esp based on your prior description of the conversation:
Quote:
Originally posted by Tump
I spoke to a senior management executive with 30 years experience. While I convinced him to come up from $3K to $6K, he chisled down my initial claim of $13K. ($13K was in the middle of my various estimates; a publication entitled "Cars of Particular Interest" estimated the diffence in value between a pristine, historically notable '99 C43 AMG and one that has been damaged but repaired well w/ OE parts to be about $11K; and the Benz delear said that he'd pay about $3K less than what I originally paid for the C43 if I traded it in on a 2002 E55 AMG -- the dealer wanted to inspect/appraise the repaired C43 first, though).
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I would read the conversation arriving at an agreed $6M from a "bid" of $3M and an "asked" of $13MM (a) to be a full arms-length negotiation and (b) your being an attorney as being a factor weighing in favor of finding a binding agreement [as opposed to finding no binding agreement or some reservation of rights], esp. when you orally settled on the $6M figure and then accepted and cashed the ins co's check for the exact same $6M payment. I think it probably doesn't look good for you to say that "yes I'm an attorney and we didn't have an agreement and I'm still keeping the $6M" or "I tricked them into paying $6M for a non-settlement, which I'm entitled to keep"-- the ins co could then probably claim the $6M was paid under mistake (that you had settled) and get it back.
I don't understand the phrase "2) which in this case case was spoken by me and accepted by the ins. co." -- what does that refer to? That you were expressly reserving the right to pursue the claim that you had just orally agreed to settle for $6M?
Again, what does "after 3) I had repeatedly encouraged the ins. co. to have its attorneys either negotiate or put that agreement in writing." mean? The senior management executive negotiated the diminishment claim with you personally and paid it in good faith. I'm sure that his testimony would be that you and he discussed the diminishment claim at great length, each arguing for your own point of view and he came up from $3M to $6M and you came down from your $13M to $6M where you had a meeting of minds and agreement.
I thought that you had left open (and they agreed to consider) claims for damages discovered by the mechanics after the initial adjuster's inspection, but can't see how you can on the one hand keep the $6M and try to sue on the same claim with respect to which the ins co tendered the negotiated settlement amount. I think any judge would find the equities against you on that one and would likely give the ins co the benefit of the doubt as to whatever was said on the call since they stepped to the plate and paid up and you accepted and cashed the check. I would also suspect that your acting both as plaintiff and pro se attorney wouldn't increase sympathy in your favor on this one.
If you want to give back the $6M [i.e., reject the offered setlement] and bring suit for the diminishment claim, then I think your case stands in a better light, but then you're at risk of getting less, in addition to the time and expense of the proceeding, which will turn into a battle of the experts.
I know you're disappointed in where things ended up after you got a good deal on the car, had it for an hour and then had it damaged through no fault of your own, but I'm hard-pressed to think that the diminishment claim would be favorably viewed with your trying to hold on to the $6M.