[Resolved] I need some legal advice
 

Hello my fellow bimmerfesters.
I am in need for a legal advice, specifically my course of action in filing a small clams court lawsuit.
Here is what happened.
My car is a lease (36 month term started in October 2011), on January 5th 2013 my car was involved in a car accident and 100% fault has been assigned to another party.
My car is still in the shop being repaired, and by the time I might get my car back I would be out of it for more than a month.
My understanding of lease vs finance situation is that the lease is a rent as opposed to the financing (ownership). Now I am trying to get another company to reimburse me for the lease payment I incurred for the month my car is at the shop being repaired and not used by me. And it does not look like we are on the same page - so am I being unreasonable to request being reimbursed for my lease payment for the month my car is in the shop because it wasn't my fault?
Should I file the lawsuit against the other insurance company or their insured?
Thank you,

Let me ask you if the insurance company provided a rental car while yours is being repaired.

are they paying for a rental car for you?

If the rental company is providing you with a car then IMO they shouldn't have to pay for your lease.

My insurance provides the coverage ($30/day up to $900 limit per incident), and I incurred out of packet on that as well - the other insurance company will reimburse my insurance company and me if the rental is of the same class as my car - I am told Toyota Corolla is in my class, I am trying not to laugh.

If I leased a beat up Corolla I'd agree

i do not believe you have any legal grounds to sue for the lease payment-- they have to make you whole, in this circumstance, by providing transportation (the rental car). i do not believe NYS insurance regs require them to provide you with a same caliber rental, just same class (compact, a 3 and a corolla are the same size class).
it sucks, but IMHO, you have no grounds for a lawsuit to recover your lease payments. you had payments before the accident, that continues.

you can try arguing with your insurance company to put you into a better car, which they'll subrogate over to the other ins company, but thats pretty much the limit of what you can do

You are fighting a losing battle. Don't make your life more complicated than it has to be. The at fault party's insurance company should provide you with a rental car for the entire time it takes for your car to be repaired.

Thanks guys.
I see that Enterprise has an Infiniti G37x as a rental option - so I will get into that I guess - last time I tried the car they offered had all 4 tires as bold as slicks.

That's standard with these cars. That is where the "x" comes in. It's eXciting to drive on four slicks on everyday roads. Get with the program! :angel:

(Sorry to hear your car is taking so long to fix. Rentals sure ain't no fun. When my car had clutch issues some time back, they got me in the shop really quickly but could not provide a BMW loaner. I had a Ford Focus for a week. Boy, spending a month in one of these types of cars when you know your much better car is at the shop sure is a pain! Good luck with the ongoing repairs!)

Man, I had the focus first, and it broke the second day I had it, changed to a Charger - what a barge POS. The Charger affair was over in a day, went back to Enterprise, they had the Infiniti on the lot, and I was told:
"we just changed the tires on it, so you might get a low tire pressure light just ignore it it will go away", I just went outside, looked at the shinny (they did go through a trouble shining those slicks up), stuck a penny, it barely covered "We" above the Lincoln head, went back to the office and handed the penny off to the Enterprise guy and told him he can keep the penny too. After that, they put me into a Mazda 6.
I'd tell you in the tight steering department it was the closest to the Bimmer, too bad they changed oil in it and forgot to put the cap back on, so the burning oil smell prompted me to return that, and get the Corolla :eeps:
/rant

Wow! I've always rented from Avis and from the sound of this, I think I'll keep it that way. :eeps:

Whenever I needed a car I always went with Hertz, but apparently I can only use Enterprise for the insurance purposes.
All I want is my car back, it will be great if it drives straight as it did before the accident - I have low expectations though :sigh: Well enough with the bickering, I will keep you all updated.
Thanks for the advice so far!

Don't forget - a Toyota is a rebadged Lexus. :eeps:

You know, considering the static I took from Boris about my post-rear-ending rental Taurus during CTC4, I'm desperately trying to suppress an occurrence of schadenfreude while reading this. ;)

Remember, this too will pass!

Thanks Zooks! Karma is a b!tch after all :D
P.S.: I hope I will have my Bimmer back by the C2C5, :crossfingers:

Damn I forgot about that, was always thinking it was the way around - is it half full or half empty???

If all the mighty Zooks could muster was a Ford Taurus ("torque steer edition"), I'd say keep the Toyota and cut your losses.

What you'll probably have to do is make the payment and talk with your insurance company. They'll negotiate for you. If your insurance has a 'loss of use' clause, you're set.

Insurance companies don't want to go to court unless they have to, especially if they're going to loose. An example: My wife was stopped for traffic trying to enter the local interstate when she was rear ended. The shoulder strap fractured her clavical so she was out of work for a bit. Rather then facing a lawsuit, the at fault's insurance paid for the work she missed AND all the overtime she missed! She also got pain and suffering tacked on.

You don't have to sign off until you're satisfied.

The thing is the insurance companies, neither mine nor the party at fault, doesn't want anything to do with. I originally went through my insurance to get the car on the road ASAP, and I am paying for rental coverage on my insurance ($30/day) and I still have to struggle trying to recover my out of pocket w/ a lousy carolla.

Sounds like you have a lizzard for your insurance ... or a poor agent. You can try asking for a case review, might help.

Just remember, insurance companies have pockets much deeper then your's. If you can prove this is their SOP towards their customers, a class action suit may get their attention.

Good luck.

Alright I am in the insurance industry so let me offer a little insight.

You are collecting under your own policy and thus are subject to the limits of your policy. in your case you opted for $30 a day rental coverage and thus you can be reimbursed up to that limit regardless of style vehicle. If that does not afford the BMW rental i'm sorry. look up some rates for those classes of car and ask your agent how much it will cost to get those limits and then make your own choices for the future.

Your other option is to go back to the other party and explain whats going on, tell them you want to get a comparable vehicle to the one you are driving and ask them if they will cover it (specifically say your looking to rent say a bmw not go by class). if they approve it then your golden and just wait for the reimbursement.

As for grounds of going to court over this and doing more then wasting more time and money? I would probably buy some scratch offs first.

In summery, always read your insurance contract and when in doubt, ask your agent.

I agree 100%. Sure the rental isn't a BMW but it is reliable transportation. Worrying about stuff like this is hard on ones psyche and not worth it.

Right on the money!

Thank you! I have cleared it up, so basically I went back to my insurance, and asked them what would they think a comparable rental would be for my car - luxury class was suggested, and I went with it - the Enterprise office I contacted had a few BMW's in the class available, and I got an X5 at the luxury insurance rate of $65 a day ($30 is covered by my insurance, $35 is out my own pocket).
My insurance extended their "gratitude" by providing a courtesy to try to get me reimbursed for out of pocket expenses on the rental when they go into litigation with the other insurance company - it is a non-fault to me accident.

Sorry to sound too rude but you can go piss in the corner - I pay a premium on my own choosing for the car in this particular class, it wasn't my idea to get into an accident and create this headache for myself, I don't know why you think I should settle for less.

lqaddict, just curious. Why did you choose to file this claim with your insurance company rather than the insurance of the at fault driver? When I had a car totaled by an at fault driver I filed the claim with his insurance company and they handled everything in a timely manner. I did have to wait at all to get a rental car. They did try to low ball how much they would pay for my car, but when I produced evidence of three or four cars like mine and the retail prices they were currently being offered at they acquiesced without any hassle and paid me the fair market value for my car.