February 5, 2010 by Zale.

When you have been involved in an accident and your vehicle has been damaged, the question of whether or not the vehicle is a total loss often comes up. Generally the average individual has not had to deal with this situation before. Therefore, I would like to take a few moments and touch on the topic. I will refer to Tennessee law, however, many of these principles are fairly universal.

What is a “Total Loss”? It is when the value of the repairs exceeds a certain percentage of the value of the vehicle. In Tennessee there is a statue which addresses this. Tenn. Code Ann § 55-3-211(9) defines a “salvage vehicle”, which is what your damaged vehicle has now become, as:

“…any passenger motor vehicle which has been wrecked, destroyed, or damaged to the extent that the total estimated or actual cost of parts and labor to rebuild or reconstruct the passenger motor vehicle to its pre-accident condition and for legal operation on the roads or highways exceeds seventy-five percent (75%) of the retail value of the passenger motor vehicle, as set forth in a current edition of any nationally recognized compilation (to include automated databases) of retail values.”

Therefore, in my experience, the 75% mark in Tennessee is generally threshold for a total loss. For example, if you vehicle is worth $10,000 and the value of the repairs is $7,500, its a total loss.  However, I do not know of any rule preventing an insurer from using a lower threshold.

What often complicates this process is the way most vehicle damage estimates are written. Most of them are written with the anticipation that there will be at least one additional estimate written, that additional estimate is called a supplement. So, if the shop writes a $6,800 estimate for the above vehicle, it may not technically be a total loss at the time the estimate is written. This occurs because most insurance companies want their estimates to be written on “visible damage”. After the shop tears down the vehicle, that is when they can see the additional damage and the supplement is written. Therefore, just because the initial estimate says $6,800, that does not mean that that is the maximum amount of the damage to the vehicle. It just means that is the visible damage to the vehicle.  (At one time, appraisers could use their experience and common sense to write estimates of hidden damage, but rarely do companies allow them to use their common sense any more.)

Based on the above, I have seen shops write, what I thought, were intentionally low initial estimates and then issue three to four supplements after having the vehicle in the shop. Some of those vehicles might have been better off as total losses, but then the shop would not have gotten paid to fix them.

So there’s the basic concept of a total loss, which often goes unexplained to the average consumer.  If you have any questions as to a related topic, such as the evaluations run by the insurers or determining the retail or market value of your vehicle, please feel free to post a comment.

Posted in Insurance Practices, Insurance Law | No Comments »

December 17, 2009 by Zale.

Since I was an insurance adjuster for over a decade, I enjoy dealing with insurance related disputes.  They don’t come up all the time, but when they do, they can be very stressful for the client.

Here is a recent Tennessee case dealing with such a dispute.  This appears to be what’s known as a “construction defect” claim where the insurer denied coverage.  I handled a few of these.  They’re pretty complex.

In this scenario, the proper way to get the court to determine coverage is known as a Declaratory Judgment Action.  In this case, the plaintiffs made other claims like “bad faith”, “Tennessee Consumer Protection Act” and that sort of thing, but for me, the heart of this case is that the court DID GIVE THEM INSURANCE COVERAGE at the end of the day.

Posted in Litigation, Insurance Practices, Insurance Law, Business Law | No Comments »

November 11, 2009 by Zale.

There are many things in this life that we can do on our own.  The problem is that often we miss details that a professional can pick up on.  It’s easy for individuals, who don’t know any better, to allow an insurance company, a district attorney, the Department of Children’s Services or any number of other individuals or agencies to take advantage of them.  Do all of those in power take advantage of the average person? No.  Do some of them? Absolutely.  How does the average individual know if they are getting the best deal or treatment? Hire an attorney.

When you hire an attorney, if nothing else, it keeps the other side honest.  It lets them know that you at least want someone looking out for your best interest.  It also gives you, the client, someone to help you understand what’s going on.  Often law is tricky.  So much so, that even attorneys can’t know it all.  At least with an attorney by your side, you have a much greater shot at getting treated fairly.

Posted in Negotiations, General Law | No Comments »

October 13, 2009 by Zale.

An officer pulls over soon to be DUI defendant.  The officer asks the soon to be DUI defendant to do some standard field sobriety tests.  Obviously at the “top of his/her game” the soon to be DUI defendant says, “sure, if you’ll do them with me.”  The questioning officer declines off handed offer, but the officer’s partner, who has been watching up to this point, gladly accepts the offer.  The officer’s partner completes the tests perfectly while the very soon to be DUI defendant falls all over his/herself.  Of course, all of this is caught on the officer’s dashboard camera.

So, whether you comply or not with an officer’s request to do a field sobriety test is up to you, but please, don’t ask an officer to serve as a bench mark on how the test should be completed, unless you know FOR A FACT that the other officer is drunker than you are.

Posted in You've got to be kidding!, Criminal Law | No Comments »

August 31, 2009 by Zale.

Tennessee is typically a pretty conservative state when it comes to people being injured on the premises of a business.  However, the case law in Tennessee does not let a business owner completely escape liability for the bad acts of an individual on the business property.  If it can be proven that the business had some culpability for the acts of that person, even if those acts are criminal, then the business can be held liable for the acts of that person.

Recently a plaintiff won $10 Million, yes Million, against Ruby Tuesday.  What did Ruby Tuesday do wrong?  It sold alcohol to an already intoxicated person, who then beat the stew out of the customer / plaintiff.  Wow!  That makes one wonder if Tennessee is as conservative at the insurance defense bar once thought it was.

Posted in Litigation, Injury Law, Insurance Law, Business Law | No Comments »

August 18, 2009 by Zale.

Some folks think that rear end automobile accidents are a “shoe in” to win.  Over my years as an adjuster, covering most of the southeast and even some of the southwest, I’ve seen them lost from time to time.  Attorneys and claimants alike would think I was crazy when I would bring it up, but it does happen.

Here’s the latest case of this nature that I’ve seen.  Apparently the plaintiff won the issue regarding the defendant being at fault, but the plaintiff lost on the issue of any of the injuries being related to the accident.  Why?  Well, it appears to have been a fairly minor accident and the plaintiff appears to have had a history of medical problems, which lead up to this accident.  In short, the jury didn’t believe the plaintiff.

At the end of the day, its still a popularity contest and you never can predict what a jury will do.

Posted in Litigation, Injury Law, Insurance Law | No Comments »

August 6, 2009 by Zale.

It’s funny to me that there are those who want us, the tax paying public, to pay for public schools, whether we use them or not, but then when we want to pray over what we’ve paid for, they get all in a fuss.  Here’s the latest article in the Tennessean regarding the Wilson County, Tennessee “See You at the Pole” case.  Nate Kellum is the Alliance Defense Fund attorney who is heading up the case.  Nate’s a great guy and I’m proud of the fact that he gets to take on the American Civil Liberties Union, who has apparently decided to take on the mantle of the “Antichrist”.

Posted in Freedom of Religion, Constitutional Law, Freedom of Speech | No Comments »

August 4, 2009 by Zale.

Tennessee recognizes a duty for business owners, in high crime areas, to take reasonable measures to protect their customers. It make sense right? If a business owner knows there is a lot of crime in their area and continues to invite customers to their business premises, then they should take the appropriate measures to protect those customers (and employees) from the criminal element that abounds in their area. This duty comes from the 1996 Tennessee Supreme Court decision McClung v. Delta Square 937 SW2d 894.

Recently, there was a case where a security company tried to escape liability by alleging that, even though they were hired to supply security for a business, they had no duty to Ms. Maggie Barron, an employee of one of the businesses.

Ms. Barron was abducted by two juveniles from her employer’s parking lot.  This was the parking lot the security company was paid to secure. The delinquents abducted her, threatened to kill her and assaulted her while driving her car around. Their activities ended when they eventually wrecked Ms. Barron’s vehicle. Fortunately, Ms. Barron lived to tell her story.

Ms. Barron sued several folks, including the security company. The security company filed a motion to allow them to be dismissed from the case. This had to have been an interesting argument for the security company’s attorney to make. Let’s see, “Your Honor, this was clearly not a high crime area, after all, they didn’t kill her.” Or maybe, “Your Honor, my client is a security company and therefore, clearly had no duty to protect anyone.”

For some reason, the trial court judge bought their argument and let them out of the case.  Ms. Barron, rightly so, was having none of that and she appealed the trial court’s decision. She won, as she should have, based on the McClung case.

What’s this tell us? If your business is in a high crime area, take the appropriate measures to make sure your customers and employees will have a chance to frequent your business again.

Posted in Criminal Law, Injury Law, Business Law | No Comments »

July 24, 2009 by Zale.

For those that are interested, my office runs on Linux, not Windows or a Mac (no offense to the Mac crowd, I just think they are way over priced).  Anyway, that blog address was hijacked and someone in New Jersey took the web address out from under me.  Yes, I could sue them and win, but proving the case isn’t worth it.  So, the blog is back up, under a different URL, which is not as nice and pretty.  It’s at http://lexlocilinux.blogspot.com .  I’d appreciate it if you would check it out.

Posted in General Law | No Comments »

July 1, 2009 by Zale.

Should the Ricci ruling have an impact on Judge Sotomayor’s confirmation hearings? Absolutely!  This case, despite what the main stream media says, is not white vs minorities.  This case was brought by 17 whites and a Hispanic.  Should that make a difference?  Well, when your argument is that the test should be thrown out because its designed so minorities can’t pass it, and the whole time, a minority has passed it, you’ve got a problem.

Do I think the court got this one right? Absolutely!  We are never going to get past racism in this country, if minority groups keep raising the “race card”.  Especially when it’s in reference to their abilities based SOLELY on race (or sex for that matter).  Unfortunately, Judge Sotomayor has made this comment as well, by referring to her superior judgment as a Latina woman on several occasions.  So, its really no surprise she ruled the way she did on this case.

I’ll just take the title of “American” thank you. I’m glad the American firefighters, who worked so hard for their grade on the test, get credit for what they did.

Posted in Constitutional Law | No Comments »