Tump,

First of all: sorry to hear that your saga continues. Reading back through this post I'm surprised the car wasn't "totalled" by the ins co. I'm also surprised that you weren't more seriously hurt. What doesn't surprise me one bit is that the ins co are being difficult.

However, I think I agree with Jim Smith. It would indeed be great to sock it to them, but it will take ages and dominate your life. If you're anything like me, doing litigation for a living, the last thing you'll want is to be doing it privately.

Besides, a 2002 E55, now you're talking... Saw one the other day in white with white wheel centres (and polished rims), looked great.

__________________
JJ Rodger
2013 G350 Bluetec
1999 SL 500
1993 E300 diesel T
1990 190

Thanks for your replies on trading my C43 for an E55. The only problem is, without significantly more compensation from the ins. co., there is no way I could afford the upgrade. I need comentary on the actual issues presented in my last post.

According to the ins. co.'s current offer, it makes more financial sense to me to accept the repaired C43 and the ins. co.'s additional compensation (which amount I am currently planning to augment) and sell the car myself, rather than to let the ins. co. buy it from me for what works out to be an amount less than my cost and sell it at a profit to themselves. The ins. co. would not pay more than my invoice amount if they elected to total the car.

Certainly, if finances were not an issue, I'd eat the financial loss and trade the '99 C43 in on a new 2002 E55. The $35 to $40K cost difference over the Starmarked '99 C43 is prohibitive. I really want a C43 anyway. A C32 would be nice, but currently, I still prefer the C43.

Given that the ins. co. has already partially settled, I believe that I would have the time to leisurely excercise my litigation muscles and practice my craft with little down side. However, I'm looking to see if you guys think my position is reasonable. That way I'll have a better sense if I can wrest fair compensation from the ins. co. with a couple more letters and minimal or no litigation.

Marc
C43 (for 1 hour)
[email protected]

...perhaps consider trading for the '99 C43 + the cash settlement for a '99 or '00 E55 AMG? (vs. the 2001/2)

Tump,

Sounds like there is no easy way out for you.

I think you have a case to force the insured guilty party to make you whole again. This is something his insurance company is supposed to do for the fee he paid for this service. He apparently did not get a very good service so the target should be the dimbulb that hit you. His contract with the insurance company should require that they assume responsibility for defending him, up to the liability limit of their contract. I doubt you are encroaching on that liability limit.

I recently went through having one of the family bang into a car and do essentially minor damage to ours, yet the car was declared a total loss. I had to argue to get this decision reversed, and the main logic by the insurance company was there is always more damage uncovered when the body shop gets further into the job, and they have rules to estimate this by. They will not pay to fix a car that the original estimate is near 70% of the blue book value of the car as they expect the adders to the job to bring that over the 80% value that is used to total the unit. Unless the body shop is willing to take the job as a fixed price, no adjustments for unknown damage.

As it turned out I paid to have the car thoroughly disassembled in the area of damage, then an accurate estimate of the damage repair done, and got the bodyshop to agree to a fixed price that met the insurance company's budget. The point of this story is the insurance company should have expected more damage to be revealed as the job progressed, and had they made that pretty standard step in the process, you would not be faced with the situation you have right now - a car that has been smashed, and a repair shop that may be capable, but is now inspired to cut corners due to friction on adjusting the cost to reflect expected growth to cover previously concealed damage. All at no fault of your own.

I do not think you are plowing new ground here, so a review of prior history in this area might be of help too. Good luck, Jim

__________________
Own:
1986 Euro 190E 2.3-16 (291,000 miles),
1998 E300D TurboDiesel, 231,000 miles -purchased with 45,000,
1988 300E 5-speed 252,000 miles,
1983 240D 4-speed, purchased w/136,000, now with 222,000 miles.
2009 ML320CDI Bluetec, 89,000 miles

Owned:
1971 220D (250,000 miles plus, sold to father-in-law),
1975 240D (245,000 miles - died of body rot),
1991 350SD (176,560 miles, weakest Benz I have owned),
1999 C230 Sport (45,400 miles),
1982 240D (321,000 miles, put to sleep)

Marc,

Let me start by saying I am sorry that you had to go through this so early on in your vehicles purchase. I was involved in a similar situation in VA and after much research in PI (personal insurance)I was not eligible for "diminished value" as my policy specifically precluded me from seeking this judgement...OOPS pays to read your policy. I also did not sustain the level of damage to my vehicle you did. My insurance company's feeling was that the policy is meant to repair your car not maintain value of your car. Further, after extensive research i found I think 21 or 29 states have had rulings on allowing coverage for diminished value under the collision policy and Georgia is the only state that permits you to claim this under collision.

I would suggest maybe lookin into some of the case law in GA to see if any of your circumstances are similar and maybe you could set a precedent in NY. If that fails could you file with your insurance company and have them subrogate to Prudential? You should still maintain your no fault and be done with this unless your policy precludes you from seeking this form of compensation.

Just some thoughts...Good luck in any event.

__________________
Mark
92 500e Spruce/Parchment (41k)
95 E320 Cab Cabernet/Parch (30K)
94 LS 400 Anniv Ed (traded on 500e)
85 Toyota Supra (103k)
90 Toyota 4Runner (56K)
------------------------------------------------
Sometimes you have to put your foot down to get a leg up

Dear JimSmith & New2Mercedes:

Problem with suing the malfeasant is that he lives and drives in PA. The accident took place in NY while he was on vacation and I believe that short of hiring a PA atty, my only option is to bring suit against the ins. co. in NY. I'm only admitted in NY and CT.

Diminished value claims in NY are all governed by common law (e.g. judicial opinion). Because such claims are neither authorised nor prohibited by statute, I believe that I am well within my rights should I resort to the courts to force the ins. co. to make me whole again. Remember, the ins. co.'s legal dept, after researching the issue, already told them to settle with me. The only large mistake they made (besides deciding to send me an insufficient amount) was not having their lawyers effectuate a settlement with me as I suggested they do.

I have not yet looked into involving my insurance co. They are not nearly as large (powerful) as the malfeasant's co.

The MB certified mechanics/auto body shop have not and will not cut corners to meet ins. co. price guidelines. All replacement parts are O.E. AMG and all repairs are done to MB spec. using MB procedure. They claim that the ins. co. has already forfeited its right to inspect and pre-approve the repairs made necessary by this accident and claim that the ins. co. must now pay them for all repairs regardless of price. The only draw back to this position is that the mechanics insist that they will not release the car until the ins. co. pays them. The ins. co. has not yet either refused or agreed to pay for all supplemental repairs, but the adjuster has informally stated that he would approve these repairs. All parties are understandably concerned and careful about repairing a NY litigator's ostensibly (formerly?) collectible Benz.

At the moment I am so riled up that I may sue everybody, mechanics and ins. co. if the ins. co. does not fairly compensate me for all the damage caused by their insured. (If any attorney members of this forum are admitted in PA and willing to help (for a fair percentage), I will draft all papers and forward them for filing). Before going to court against the offending driver, however, I may send him a cautionary demand letter.

Unfortunately, I'll be on the west coast next week, just when the car is expected to be ready.

Marc (C43 for 1 hour)
[email protected]

Marc: a few thoughts:

1. I can't believe that you will get the check for the $6M without giving a total release and satisfaction which will preclude your going after their insured. If I were the insurance guy and were later called on the issue of this not being raised in the telephone call, I would say that it is so obvious as not to need mentioning.

2. I don't do this kind of law, but I don't understand how the ins company would ever pay you more than the cost of the car (including whatever credit you got for your trade-in) even if they totalled it (see 3 below re your trade-in). I can understand adding the cost of the Starmark warranty and CD if it were totalled (because you would not have them anymore), but you still have the warranty and have only lost the couple of months that your car has been in the shop (maybe you can justifiably add a pro-rated amount to your claim for what was "burned off" the warranty. The CD is unaffected, so what else is there in "actual cost" [other than the diminishment claim]?

3. Vis-a-vis the ins co, the "true value" of your trade-in was what you accepted for it when you bought the C43. If the pristine 300E was worth more, then you should have sold it privately for more rather than use the convenience of the dealer trade-in -- I don't think that you can expect the ins co to look back behind the C43 purchase, but the total price to you should, of course, include the trade-in credit which the dealer actually gave you. If the 300E is still around, maybe you should just give the repaired C43 back, take your 300E back and pocket the $3M balance (after paying the dealer the $3M diminishment).

4. As is, you're getting all the repairs (including renewal of a lot of "wear" parts that you have to replace eventually) plus $6M (assuming that you are willing to settle for that).

I think you will be lucky if the ins co just pays for the repairs, but leaves you free to sue them for the dimished value at all (assuming that you and they can't reach agreement) -- in that event you can get your car back running and then fight over the diminishment, with what will ultimately be a battle of experts. If you're serious about the diminishment issue and willing to take them on (with the attendant time and energy costs as well as litigation risk), then that's the way you should go. I don't see any way that they would be stupid enough to hand you $6MM for the diminishment claim and not get a full release so that you can then turn around and sue them (or their insured) for a higher amount for something you've already been paid $6M for.

I'd be more concerned that the ins co says "take it or leave it" as a package and forces you to bring one action for everything (including the repairs and diminishment) leaving you figuring out how to pay the body shop so as to get your car back.

__________________
'98 C43 AMG
'88 420SEL
'93 190E Limited Edition (including factory Sportline package)

I don't understand the problem; you ought to have sufficient NY jurisdictional contacts to sue the driver in NY -- just serve him in PA [not a big deal; there are service of process companies which will do it for you] and when you get the NY judgment, have it registered in PA for enforcement. His ins co will step in to defend him in NY.


Per my prior note, this is what I forsaw as a real problem -- you won't get the car until the body shop gets the $$. If I were the ins co, I'd settle everything or nothing, but if you can settle for everything other than the diminishment in value and agree to disagree on diminishment (and later litigate on that one issue), then that's the way to go if you want to fight that battle. Otherwise, if the car drives and looks OK, take the $6MM and chalk it up to experience.

__________________
'98 C43 AMG
'88 420SEL
'93 190E Limited Edition (including factory Sportline package)

Dear C43AMG:

The ins. co. has already sent me $6k that I have deposited. They did not ask for or receive either a verbal or written release from me.

If I'm very lucky they recorded my conversation with the insurance co. executive and then the terms of our deal would be clearly revealed: that additional compensation would be due from them for any later discovered or initially missed additional damage that could be directly related to the accident at issue.

In the context of this matter I do not believe, short of any writing, that the ins. co. could successfully claim that they already had a complete accord and satisfaction with me. If that were so I don't think they would pay mechanics for "adders" or "supplemental repairs" related to the original accident after they already made their first payment for repairs.

Thanks for your help with the jurisdictional issue. If I have to go after the PA driver it's nice to know that I could in NY. I was worried that with no property in NY, I could never enforce a NY judgment against him. Thanks for letting me know that I could.

As per your thoughts, I may have to chaulk this up to experience and release the ins. co. if their payment to the mechanics and the release of my car depends on it. If, however, I get my car back without having to release them, I believe that I will go after them.

You are absolutely correct that the ins. co. would probably never have to pay me more than the invoice amount for my car if they totaled it. The only arguments I could think of on this issue would be a legal stretch (similar to specific performance).

Marc (C43 for 1 hour)
[email protected]

Maybe if they are stupid enough to send you the $6M without a signed release they'll be stupid enough to pay the mechanic without one too, but I have to think that a judge will probably look askance at your accepting the $$ and suing for more without an explicit agreement from the insurance company allowing you to preserve those overage claims.

You might also check the NY General Obligations Law and Insurance Law to see whether acceptance of a check for a claim constitutes satisfaction -- you'd obviously want to avoid sanctions for bringing an impermissible claim or having to defend an ins co counterclaim for fraud in taking the $$ and then turning around and suing their insured for a claim they've settled with you in good faith.

__________________
'98 C43 AMG
'88 420SEL
'93 190E Limited Edition (including factory Sportline package)

Marc! pop ERASE into the search hopper and read his saga in dealing with an Insurance company getting full value on a policy where he did NOT have a "Stated Value" Rider.

I quickly read the past posts up to this one so if this was already suggested - my apologies.

Not a good idea to keep the car unless you are planning on KTIC-Keeping Till It Croaks.

If you were to go onto carfax.com - input your vin and pay the $14 fee to peek - you may see that they already have the damage report to your vehicle. Any potential purchaser or Wholesaler is most assuredly going to pull a history on the vehicle.

Ask your dealership to give you a price in writing to buy the car back from you. Whatever the difference is in what you originally paid including your trade-in 300E and what they offer you is what the insurance company is only going to be required to pay.
You currently have no basis in fact of what that amount is. Going in front of a judge without that would almost assuredly guarantee a lose. The amount already paid by the ins carrier may already be enough to make you "whole". It may also be substantially less. At present, you do not have a foundation for your case that is rock solid. If I were an atty, I would be taking this case strictly on hourly with an up-front retainer, certainly not contingency.

Get written offer to purchase your car from your dealership or any registered/licensed dealer and then you will have a document establishing a basis in fact to go to the insurance company with and threaten litigation or payment to avoid same.

There is a hidden benefit here that I am not willing to put on an open forum. Email me if you do not see it.

Tom

Dear C43AMG


I certainly will check the applicable NY Laws regarding satisfaction before indicating that I will or actually take any legal action. However, I still have to wait until the ins. co. pays the mechanics and allows my car to be released (or not) before I decide what to do. We have to wait about two weeks to see just how sloppy the ins. co. is.

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.


Dear TomE500

I will search ERASE before contacting you. As an atty I probably wouldn't even take this case (maximum potential recovery after the ins. co.'s initial payment to me is relalistically limited to $8 to $10 grand, if), but representing myself with the ins. co.'s money and a repaired C43 in my possession I don't think I could resist. The mental excercise and legal issues involved would be too interesting, especially since ins. co.'s regularly rape New Yorkers and others.

Thanks all for your invaluable support and advice.

Marc (C43 for 1 hour)
[email protected]

Marc: I don't get to the same conclusion, esp based on your prior description of the conversation:

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.

__________________
'98 C43 AMG
'88 420SEL
'93 190E Limited Edition (including factory Sportline package)

Dear C43AMG:

Thanks for your reply. I see your argument, but I believe that I reserved my rights verbally in my negotiation with ins. co. executive.

Basically when I spoke to him I said that I'd accept the $6K if the ins. co. would pay for any later discovered damage related to the accident, if any, that we had not considered in that discussion. Since we based our negotiation on the ins. co.'s original damage estimate and since that time the mechanics have discovered additional suspension and uni-body damage not considered by us in those negotiations, it seems reasonable to me that the diminished value of the vehicle would be greater due to the greater damage it sustained. The mechanics' invoices, testimony and keeping my car for 3 weeks beyond the original estimated completion date shows the severity of that additional damage. Additionally, no fair and final estimate of the car's diminished value could be done until all the damage sustained by that vehicle is known and evaluated.

I'm pretty sure that the ins. co. believed that our negotiation was final; but for the actual terms of our verbal agreement, I myself do not believe that it was.

In any case, I will have to wait to see if the ins. co. pays the mechanics to repair that additional damage without seeking a general release from me before I can decide what to do.


Thanks
Marc (C43 for 1 hour)
[email protected]

I just come across this thread and it's taken about 20minutes to read it! Being an engineer, this legal stuff slows me down.

Tump, sorry about your 'disaster'! It certainly is one, no joke.

My offering to this thread is this:
Had bought a '94 E320 that was in a BAD rear end accident. But it was not disclosed to me nor was it in the (usless) CarFax reports.

Let me say, that the car was repaired perfectly! No rattles, vibrations, wheel pulling at any speed. Tires wore symtrically. Could drive on a flat road without hands on the wheel. In short, it was perfect. I drove it for two years or so, and never knew.

But the kicker came when I went to sell it. The car's tradein value, if I remember correctly, was $22K. I ended up taking a $5k beating! Got $17K. It could have been more since the dealer wanted to sell his car.

I imagine that when you try to sell the 'fixed' car, you will take a bigger beating than me. But, as one of the responders said, if you drive it forever, it won't matter.

Hope you prevail!

__________________
Regards . . . . JimF
-------------------
'94 S500 Cpe

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