This is a narrative of what I went through trying to recover a somewhat minor amount with respect to property loss from the accident with another driver who swerved into my lane at the last possible second and hit me head-on.
There are 2 separate aspects to an auto accident – personal injury and property loss. I hired Joe Bornstein immediately after the accident to represent me in the personal injury aspect of the accident.
This below concerns only the property loss portion of the accident.
It’s a long read but very instructive as an matter of how to win against the insurance companies when they act and deal in bad faith. It’s a process that really doesn’t have any short cuts. You have to establish your claim and you have to be honest and respectful. You need to try and keep the emotions out of it. Threats are a waste of time and counterproductive. It may seem like a fine line between threatening to file a lawsuit or complaint and simply stating that you are fully prepared to file a suit or complaint.
In the final analysis, if they are actually jerking you around, your state bureau of Insurance may be your best friend.
Here is my statement regarding the accident.
Accident Statement dated September 4, 2017
My vehicle was a Volvo station wagon about 9 years old in excellent condition.
Yesterday, Sunday, September 3, 2017, I set out at 1:45pm to travel to Bridgton to attend a wedding, the son of a friend. I was traveling on route 77 from Cape Elizabeth south, and the weather was light rain but road conditions and visibility were good.
When the vehicle was about 30 feet from me, the driver abruptly turned into our lane completely and hit us head-on. The move was so sudden and unexpected, and the car so close when he swerved into our lane, that there was no time at all to take any evasive maneuvers whatsoever. At no time was there any debris, dog, fox, cat, deer or anything else in the other driver’s lane. I am absolutely certain of it. The vehicle slammed head on into my vehicle, causing a horrific crash. The other driver’s actions appeared to be those that one would take if trying deliberately to crash head on with our car without allowing any chance for us to avoid the crash. The other driver never applied his brakes and was traveling about 40 miles per hour at the time of the crash. I was traveling about 35 miles per hour. I was wearing my seat belt with shoulder straps. Airbags deployed. The Volvo is a complete and total loss.
The other driver’s insurance company is Allstate. I am currently a proud client of the Law offices of Joe Bornstein with respect to the personal injury portion of the accident.
Here is my 1st email regarding a settlement.
Benson Dana – 10/16/2017 I’ve come to a settlement on the car and the towing and storage charges. All that’s left, I believe, for property damage is my hearing aids and cell phone. The auto claims adjuster, Susan, said to get back to you on those items.
I left my phone at home today so email is the best way of contacting me.
Allstate Claims Adjuster’s 1st reply:
Kristel Herbine – 10/17/2017 Hi Benson,
I need photos of the damaged hearing aid and damaged cell phone.
Benson Dana – 10/17/2017
They disappeared. I have to assume they were scooped up with the rest of the trash at the accident site. You have a picture of the car. As a CPA, I sign tax returns under penalty of perjury every year. I’m happy to sign such a statement for your documentation.
Kristel Herbine – 11/1/2017
Without photo or physical evidence that the items were damaged by the accident I cannot reimburse you for them.
Please call me if you have any other questions.
Benson Dana – 11/1/2017
I was told the statue of limitations was 6 years. Is that true?
My intention is to settle the personal injury claim and then file against Allstate in small claims court. Please note this in the claim file and keep the claim open.
Please send me a letter with a complete discussion of how you arrived at your decision and be sure to include a statement that Allstate never honors a claim for property lost in a car accident, which is what I understand you to have said.
I find your explanation for denying my claim completely unreasonable in the circumstances, certainly in bad faith, and request the contact information of your supervisor.
Kristel Herbine – 11/2/2017
Yes the statute of limitations is 6 years.
I will not make a statement that Allstate never honors a claim for property lost in a car accident as that is not true and that is not what I said. In order to present a claim you must provide proof of a loss, which you have not done. You have not provided me with any evidence to support that the items were in the car and damaged at the time of the accident. Our process for a property claim is to retain the salvage of damaged items just like we would a vehicle. I was willing to accept photo evidence of the damage, but you were unable to provide that either. If you have any additional evidence to submit, I will be happy to reconsider.
My supervisor’s name is Valerie Skurla and her phone number is 610-251-3250.
Benson Dana – 11/2/2017
The proof of the loss is my statement which I will state under any legal conditions you want. On the face of it, I was going to a wedding so I had my hearing aids in my ears and my phone with me. Why do you suppose I have hearing aids and a phone, because I like to keep them in a box at home?
And what do you suppose happened to them? I can’t use 2 sets of hearing aids or 2 phones. Would you accept a corroborating statement by my wife that these items were lost in the crash?
I understand what your process would have been at the accident, but Allstate was not there and my wife and I were taken to the hospital by ambulance. I really didn’t have the ability to search for these items at the time. By the time I was able to return to the scene of the crash 2 or 3 days later, all debris was gone.
Common scenarios where an insurer denies coverage.
Of all the many types of cases we do—personal injury, work accidents, premises liability, etc.—insurance companies deny liability most of all in car accidents. Some insurance carriers (like Allstate) are notorious for frequently denying coverage simply as a matter of course. They are aware that you have the option to sue them, but they also know that you probably won’t and are basically calling your bluff. They’ll likely feed you some line about “disputed liability” or “unproved damages” or some jumble of legal-sounding phrases about your case that might even be made up from thin air.
Please also provide me with your supervisor’s email address and Allstate’s complete appeals process for claims. If Allstate continues to stonewall me on this issue, I’m happy with small claims court and putting all this in the public record so others can learn from it. I don’t think the judge will be impressed with your argument. I happen to work for the Maine Judicial Branch as a Grant Accountant, so I’m more than ready, willing and able to sue Allstate. I’m actually looking forward to the experience. You can read about my work regarding fraud and collection activities on my blog – www.internalcontrolfreak.com
Benson Dana – 11/3/2017
How long should I expect to wait for your supervisor’s email address and Allstate’s complete appeals process for claims?
Should I expect a written denial of my claim in the mail? If so, how long should I expect to wait for that?
Kristel Herbine – 11/7/2017
Her email address is Valerie.Skurla@allstate.com.
I am not denying the claim, but you have not provided me evidence of a loss of those items. If you have any evidence to support that the items were damaged I will be happy to review it.
Benson Dana – 11/7/2017
If my house burned down, Allstate would not require a picture of every item lost in the fire before approving the claim. It is the exact same principle with my claim. EXACT. The nature of the loss, a horrific car crash and a devastating fire, result in the destruction of the item of property.
I assert you are acting in bad faith by holding me personally to a different standard.
When you file an insurance claim with an insurance company, by law, in any state, that company owes you a duty to act in good faith. Simply put, this means that the insurance company must not look for ways to escape its obligation to investigate the claim or to pay you. Doing so would constitute bad faith. Bad faith claims and lawsuits may stem from one or more of a number of actions or inactions by the insurance company from denial of coverage to failure to negotiate a settlement. Here are some of the typical reasons insurance companies get sued for bad faith:
Unwarranted denial of coverage
Failure to communicate pertinent information to the claimant
Failure to conduct a reasonable investigation of the claim
Refusal to pay the claim without investigating
Failure to deny or pay the claim within a reasonable period of time
Failure to confirm or deny coverage within a reasonable period of time
Failure to attempt to come to a fair and reasonable settlement when liability is clear
Offering substantially less money to settle than the true value of the claim
Failure to promptly provide a reasonable explanation for denial of a claim
Failure to enter into any negotiations for settlement of the claim
Failure to respond to a time-limit demand
Failure to disclose policy limits
Your state’s Department of Insurance (DOI) is a resource for information on insurance companies’ financial stability, but it also regulates insurance companies’ handling of claims for promptness, fairness in negotiations and good faith settlements. Simply put, you, as a consumer, have a right to file a complaint with them if you believe your insurance claim has been mishandled or you haven’t gotten a reasonable, timely settlement.
By telling me you are not denying my claim, while at the same time being aware because I have told you that I cannot possibly produce the specific item of proof you seek, a photo of the items after the crash, seems on the face of it acting in bad faith.
Where do you see this going, because I see nothing but a stalemate.
If this is the case, I will file a complaint with
Because I am NOT acting in bad faith, I would ask that you please give me an alternative if you have one.
Benson Dana – 11/8/2017
If I don’t hear from you by close of business Friday, or if you continue to stalemate the claim, I will file my complaint over the weekend with the Maine Bureau of Insurance.
Kristel Herbine – 11/9/2017
I am continuing to review your claim. The references you state below are with regard to first party claims. In this instance, as a third party claimant, the burden is on you to provide proof of loss. The lost must also be as a direct result of the accident. Furthermore, we would then consider the actual cash value of the items that were damaged.
Please provide us with a detailed notarized statement as to the events leading up to the loss or damage of these items. Please include where the items were at the time of the accident, when they were last seen, or when you first noticed that they were damaged or lost. Additionally, please provide proof of purchase and specific model numbers of the hearing aid and the phone.
Upon receipt we will advise you of our decision on the claim.
Benson Dana – 11/9/2017
Thank you. I can do that. You can expect it Monday.
Benson Dana – 11/14/2017
At least we know for certain that Allstate will lose the small claims suit if it comes to that.
When can I expect an answer on my claim?
Benson Dana – 11/28/2017
This complaint has been submitted to the Maine Bureau of Insurance.
Kristel Herbine – 11/28/2017
I apologize for not getting back to you sooner, but there was some delay due to the holiday.
I did review the documents you submitted and am able to offer you the original purchase price of the items that were lost in the accident for a total of $1397.97. $1258.20 for the hearing aids and $139.77 for the cell phone. Normally in a property damage claim the items are subject to depreciation just like a vehicle, however in the case I am going to waive the depreciation reductions and offer you the cost of the lost items.
Please let me know if this is acceptable to you.
Benson Dana – 11/28/2017
That’s a lovely offer and I accept.
And the smoking gun of the entire affair…………
Kristel Herbine – 11/28/2017
Thank you Benson. I would appreciate if you would withdraw the complaint and I will send you a check.
Please confirm your address.
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