• Jonathan R Bunn

Total Loss Vehicles in Auto Accidents

From time to time I will be involved in the property damage portion of a personal injury case. In most cases, the damage to a vehicle is resolved with your own insurance company that has to adjust the loss regardless of who's at fault and to do it in a timely manner. Then, your insurance company recovers through the at fault driver's insurance through inter-company arbitration. However, what happens if you can't agree on the value of the loss? Oregon has two statutes on the subject of the total loss of a vehicle. I.e., the repair costs are deemed to be more than the value of the vehicle. O.R.S. 742.558 requires that an insurance company (and it refers to your insurance company or the at fault driver's insurance company) pay the amount of the value of the vehicle that is not in dispute. So, if the insurance company agrees that the loss is $10,000, but you contend that the fair market value of your vehicle is $14,000, then the insurance company should pay $10,000 -- the amount that is not in dispute -- and you should be able to continue asserting your claim for the remaining $4,000 in value. One of the reasons to pursue a first party claim (i.e., with your own insurance company) would be if liability was contested and it would take a long time to recover from the other driver's insurance company. But, if liability is clear there should be no valid reason for a third party claim to be delayed. ORS 742.466 provides for appraisals by competent and disinterested persons as well as resolution of disputes under the rules of the Director of the Department of Consumer and Business Services. That would not be a process I would be interested in. Rather, I would prefer to obtain the "undisputed amount" from the at fault driver's insurance company and add the property damage claim to my lawsuit against the at fault driver. There is no case law interpreting either of those statutes. Remember that you do not have a direct claim against the at fault driver's insurance company. You have a claim against the at fault driver and that driver is indemnified by his or her insurance company. ORS 742.466 discusses a "vehicle liability policy" and provisions for resolving disputes through appraisal. However, your first party claim would not be under a "liability" policy and you would not be bound to any "provisions" of a third party policy. So, the statutes are confusing and in the absence of case law interpreting them proceed with caution. Finally, if you resolve your property damage with your own insurance company (a first party claim) then you don't have a property damage claim any more. It belongs to your insurance company.

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