DIMINISHED VALUE CLAIMS FOR AUTO ACCIDENT CASES — MAXIMIZING YOUR RECOVERY
Oct. 16, 2013
I recently settled a client’s auto accident case. Not only was she injured, her car was damaged as well. In many auto accident cases, the plaintiff handles the property (car) damage case directly with the insurance company, whether his or her own or the defendant driver’s, and leaves the personal injury component to the attorney. Auto property damage is usually not litigated because there is often not a lot of question about the value and the plaintiff needs the car repaired quickly. Assuming insurance covers the damage and repairs to the car, the plaintiff is still not fully compensated for the loss. The reason is that a car, no matter how well repaired, is worth less after it is involved in a collision. Should the plaintiff attempt to sell the car, he or she would not be able to receive as much had the car not been involved in the collision. In a situation in which another driver is responsible for the accident and the ensuing personal injuries and property damage, it follows that the defendant driver should be responsible for the reduction in the car’s resale value.
Connecticut and many other states have a cause of action under common law that addresses this issue. It is known as a diminished value claim. The DV claim (not to be confused with domestic violence on the criminal side) entered Connecticut case law in 1944 with the case Littlejohn v. Elionsky, 130 Conn. 541 (1944). Littlejohn and its progeny, which includes Stults v. Palmer, 141 Conn. 709 (1954) and Damico v. Dalton, 1 Conn. App. 186 (1984), hold that a defendant is liable for the diminished value of a plaintiff’s vehicle which is calculated as the difference between the vehicle’s value before the accident and the value after the accident. Market value is used.
My client and her car were rear-ended on I-95. Liability was clear. My client recovered from her injuries. The car did not. Although the body was repaired, the frame was bent. Damages were extensive but the car was not totaled. Frame damage makes a car difficult to sell and often at only a fraction of its pre-accident value. The way we prosecuted the DV claim was to have an auto appraiser appraise the car and then submit the DV demand with our personal injury demand to the defendant driver’s insurance company. We were able to resolve the case without filing suit. Such cases however can be litigated in court with the personal injury case. It is important to note that even though the client accepted an insurance payment for the repairs of the car, she was still able to recover the diminished value afterward. Diminished value claims are only available against a defendant (and through his or her insurance) and not a plaintiff’s own collision policy.
The DV claim is one of many examples of why it helps to have a lawyer handle your accident case. An attorney will know what claims are available and maximize your recovery. It is true that a person can settle his or her own case with the opposing insurance company. Insurance companies love that. Your damages in a case are always more than your bills and you should be compensated for them. In my next post, I will explain that concept as it relates to insurance premiums.