Mustang_Scotty Posted June 30, 2008 Report Share Posted June 30, 2008 Since I was upset and went ahead and fixed the car before the shipping co. could get there estimated I'm probably not getting any money. COuld I sue? and win? This is the guys quote " I can understand being somewhat distraught Scott, however, the fact remains you denied us the opportunity to mitigate the claim in accordance with our policies and what the law allows us. I have forwarded the claim and the documents to the Risk Manager and our legal group for consideration. Again I will advise once they have reviewed and responded." Link to comment Share on other sites More sharing options...
Michael Morris Posted June 30, 2008 Report Share Posted June 30, 2008 Since I was upset and went ahead and fixed the car before the shipping co. could get there estimated I'm probably not getting any money. COuld I sue? and win? This is the guys quote " I can understand being somewhat distraught Scott, however, the fact remains you denied us the opportunity to mitigate the claim in accordance with our policies and what the law allows us. I have forwarded the claim and the documents to the Risk Manager and our legal group for consideration. Again I will advise once they have reviewed and responded." I think as long as you have pictures and you wrote it on the delivery sheet they have NO choice but to pay you SOMETHING! I dont know how much, but I would think that if you had to go after them that you would win, but Im not a fan of sueing anyone, but whats right is right. michael morris Link to comment Share on other sites More sharing options...
David Hawkins Posted June 30, 2008 Report Share Posted June 30, 2008 I think as long as you have pictures and you wrote it on the delivery sheet they have NO choice but to pay you SOMETHING! I dont know how much, but I would think that if you had to go after them that you would win, but Im not a fan of sueing anyone, but whats right is right. michael morris What he said............... David. Link to comment Share on other sites More sharing options...
shelbymotorsports Posted June 30, 2008 Report Share Posted June 30, 2008 MS, Basically you are correct. The odds of seeing 100% of the repair money has diminished. I have no idea what the estimate for repair would have been so I'll make up a figure of $1,500 worth of damage. There is no way they will now pay you $1,500 because they will "claim" they could have had it repaired for less. But say you ask them to pay half of the repair at $750. They may consider that especially if they know the repair would have cost them much more. The problem is that they were not allowed to see the damage so their "legal department" has no way to make a determination on your claim. I'm not saying this attitude is right all I'm saying is that in the real world their job is not to pay claims. Unless you're talking big money its probably best to move on. I have a feeling your gut is already telling you that a form letter is on the way to you from them. Steve PS- You have other options like the BBB and small claims court. You'll have to decide if its worth the aggravation or not. Link to comment Share on other sites More sharing options...
Mustang_Scotty Posted June 30, 2008 Author Report Share Posted June 30, 2008 Again, I open my big mouth and told him I had it repaired. Buteven if I didnt tell him and gave him the prices he would of gone his way and found out that I repaired it. I would take anything now. Link to comment Share on other sites More sharing options...
Michael Morris Posted June 30, 2008 Report Share Posted June 30, 2008 Again, I open my big mouth and told him I had it repaired. Buteven if I didnt tell him and gave him the prices he would of gone his way and found out that I repaired it. I would take anything now. I had a SGT shipped from CA to AL a few months ago. The car had the front valence scratched and was VERY dirty (shipped enclosed so that wouldnt happen) When he signed for it he noted the problems. The trucking company wanted to say that the damage was done at the dealer before it was picked up, but he couldnt "FIND" that paperwork. The trucking company was VERY professional and worked with the customer and me to get it worked out. I the trucking company ended up paying for most of the damage, but to keep the customer happy I paid for it to get detailed. I dont think these folks have much to stand on since you have the paperwork showing the damage. I believe the HAVE TO pay. You have pictures and documention. Send copies to them and find out what they are going to pay. I think I would handle this just like a car deal. Dont tell them how much you spent. Let them make an offer (it will be a low ball) then come back with what you want and meet in the middle. Good luck getting this worked out. michael morris Link to comment Share on other sites More sharing options...
ShelbyDude Posted June 30, 2008 Report Share Posted June 30, 2008 Again, I open my big mouth and told him I had it repaired. Buteven if I didnt tell him and gave him the prices he would of gone his way and found out that I repaired it. I would take anything now. Did you get more than one estimate? If you got 3 estimates the Judge in small claims will likely average the 3 out and award you that amount. Especially a small claims Judge! You got pics before and after, they acknowledge they were at fault, it would be pretty much a slam dunk win for you! Now if you only got the one estimate they can claim they could have fixed it for less, but even claiming that it isn't like they would walk out by paying a small fraction of that. It still would be within reason based on your actual cost and that is what most Judges will rule on. Especially small claims Judges! They almost always lean towards farvoriting the plaintiffs, especially consumers that are suing a business. And in this particular case being a brand new car that they were negligent with I can't imagine any Judge leaning more favorable towards whatever they have to say. I'd say it would be pretty much a slam dunk in your favor! Plus they should have sent someone out right away! Not sit on it taking their sweet time about it! The question you need to answer is do you want to hassle with going to small claims? It isn't a big deal. Pretty simple. You file your complaint, they get served, you appear and present your case, and they state their side, the Judge rules, you win, they lose, end of story! Also, I would be surprised if they even bothered to show up in court. Unless the amount you are claiming is excessive compared to what the average cost would be to fix it. What did it cost? What were the other estimates you got, if any? Link to comment Share on other sites More sharing options...
shelbymotorsports Posted June 30, 2008 Report Share Posted June 30, 2008 The question you need to answer is do you want to hassle with going to small claims? It isn't a big deal. Pretty simple. You file your complaint, they get served, you appear and present your case, and they state their side, the Judge rules, you win, they lose, end of story! SD I have to respectfully disagree that the small claims court process is pretty simple. First headache is determining where to file. The plaintiff may have to file his case in the trucking companies home state which isn't easy if its different than his. Second you have to find out the owners name of the trucking company and the name of the truck driver. Like home contractors some of these guys are pros at hiding that info. Third the trucking company has to be served. Some states require that this be done in person and not thru the mail. An added expense at minimum. Then comes proof. You say the driver did the damage but that needs to be proven. It will take at minimum notarized statements from the dealership that the car left their lot with no damage. I'm not trying to be all doom & gloom but from past experience of taking a GM dealership to small claims court I learned my lesson that its not worth it. Until we learn what amount the actual damage was its hard to give perfect advice on this specific situation. Steve Link to comment Share on other sites More sharing options...
ShelbyDude Posted June 30, 2008 Report Share Posted June 30, 2008 SD I have to respectfully disagree that the small claims court process is pretty simple. First headache is determining where to file. The plaintiff may have to file his case in the trucking companies home state which isn't easy if its different than his. Second you have to find out the owners name of the trucking company and the name of the truck driver. Like home contractors some of these guys are pros at hiding that info. Third the trucking company has to be served. Some states require that this be done in person and not thru the mail. An added expense at minimum. Then comes proof. You say the driver did the damage but that needs to be proven. It will take at minimum notarized statements from the dealership that the car left their lot with no damage. I'm not trying to be all doom & gloom but from past experience of taking a GM dealership to small claims court I learned my lesson that its not worth it. Until we learn what amount the actual damage was its hard to give perfect advice on this specific situation. Steve Proof of damage here is simple. He has pics of the car sitting on the truck before it left the dealership. No damage on the car in those pics. Car arrived with damage. As for finding the driver that is not a concern nor his issue. The driver is merely a EMPLOYEE and you can't sue the employee. You have to sue the company. The company has to bring their employee (the driver) to court to testify in their own defense if they are claiming no responsibility. He merely needs to file in the county that he resides. They were doing business in HIS State in his home town by delivering the car to him at his residence. So he can file in his county court. The trucking company will have to appear. Now had he went to their State and done business in their State then he may have to file in the county the business resides in, but since they did business in his State by coming to his home then he should be able to file in his county. As for being served, yes, he may have to pay an extra fee to get them served in his State but you get that back if you win your case. BTW....Do NOT list the driver as a defendant or they can use that to force you to refile again because you can't sue the employee. You can only sue the company. UNLESS, the driver really isn't an employee where he is an outside contractor for the company and it was his own truck used to deliver the car with. Then he is a subcontractor and in that case you want to list both the driver and the company, but since the driver could be harder to trach down I would just list the company since they are the general contractor that contracted the driver and as such they would be just as liable. Plus the company would be easier to collect from than a driver would be since the company has a base they do business from and if they didn't pay the judgement you could have the sheriff show up and take their assets up to the amount of the judgement owed. Ask me how I know this? Been there before! Link to comment Share on other sites More sharing options...
Mustang_Scotty Posted July 1, 2008 Author Report Share Posted July 1, 2008 OK, I spent $2650.00 for the damage. And just to let you know I am having the front re-done. Anyway, I live in NY and the shipping co. is out of state. Can I file in my state and have them coem here? And even if they do nt show up I read that to try and get the $$ bfrom them is not that easy. Is it worth the $2000????? Proof of damage here is simple. He has pics of the car sitting on the truck before it left the dealership. No damage on the car in those pics. Car arrived with damage. As for finding the driver that is not a concern nor his issue. The driver is merely a EMPLOYEE and you can't sue the employee. You have to sue the company. The company has to bring their employee (the driver) to court to testify in their own defense if they are claiming no responsibility. He merely needs to file in the county that he resides. They were doing business in HIS State in his home town by delivering the car to him at his residence. So he can file in his county court. The trucking company will have to appear. Now had he went to their State and done business in their State then he may have to file in the county the business resides in, but since they did business in his State by coming to his home then he should be able to file in his county. As for being served, yes, he may have to pay an extra fee to get them served in his State but you get that back if you win your case. BTW....Do NOT list the driver as a defendant or they can use that to force you to refile again because you can't sue the employee. You can only sue the company. UNLESS, the driver really isn't an employee where he is an outside contractor for the company and it was his own truck used to deliver the car with. Then he is a subcontractor and in that case you want to list both the driver and the company, but since the driver could be harder to trach down I would just list the company since they are the general contractor that contracted the driver and as such they would be just as liable. Plus the company would be easier to collect from than a driver would be since the company has a base they do business from and if they didn't pay the judgement you could have the sheriff show up and take their assets up to the amount of the judgement owed. Ask me how I know this? Been there before! Link to comment Share on other sites More sharing options...
ShelbyDude Posted July 1, 2008 Report Share Posted July 1, 2008 OK, I spent $2650.00 for the damage. And just to let you know I am having the front re-done. Anyway, I live in NY and the shipping co. is out of state. Can I file in my state and have them coem here? And even if they do nt show up I read that to try and get the $$ bfrom them is not that easy. Is it worth the $2000????? Is it worth the $2,000 what? The $2,000 to sue for? Surely you're not saying it cost $2,000 to file small claims? I think you can file in your county where they would have to come there to defend their case. You can verify that with a local attorney. If you win you get a judgement against them. If they don't pay you have the judgement recorded in their county which will attach as a lien against their property. So if they ever need to borrow money, sell the property or whatever, they will have to satisfy the lien. Are they corp or LLC? Link to comment Share on other sites More sharing options...
shelbymotorsports Posted July 1, 2008 Report Share Posted July 1, 2008 OK, I spent $2650.00 for the damage. And just to let you know I am having the front re-done. Anyway, I live in NY and the shipping co. is out of state. Can I file in my state and have them coem here? And even if they do nt show up I read that to try and get the $$ bfrom them is not that easy. Is it worth the $2000????? Did you hire the shipper directly or did you go thru a broker? The goal would be not only to be able to file in your state but also in your county for obvious reasons. ShelbyDude has a point that since they delivered the car to your home it would be reasonable for you to assume you can file in your state but then again it all depends on where the court considers the contract originated. Kind of like that Ford club lawsuit. That club of course wants the lawsuit to be heard in CT but it was ruled that the contract originated and was executed in California although the "damages" occured in CT the suit will be heard in California. I am no way an expert, actually far from it. I've just observed a good amount of silliness in lawsuit happy California. Steve Link to comment Share on other sites More sharing options...
ShelbyDude Posted July 1, 2008 Report Share Posted July 1, 2008 Did you hire the shipper directly or did you go thru a broker? The goal would be not only to be able to file in your state but also in your county for obvious reasons. ShelbyDude has a point that since they delivered the car to your home it would be reasonable for you to assume you can file in your state but then again it all depends on where the court considers the contract originated. Kind of like that Ford club lawsuit. That club of course wants the lawsuit to be heard in CT but it was ruled that the contract originated and was executed in California although the "damages" occured in CT the suit will be heard in California. I am no way an expert, actually far from it. I've just observed a good amount of silliness in lawsuit happy California. Steve Isn't that Ford club lawsuit over the contract itself? As in a breach of contract or something? This isn't pertaining to a contract per say, but actual damage to property which said property was delivered damaged in NY at his residence. Plus since they are basically doing business throughout the US I think you can sue in the State where the damages occured which would be NY. Not the trucking company's home State. They are doing business in different States since they are transporting property across State lines. No different than suing Sears for example. If you took your car to Sears to have work done you would sue Sears in your home State where you took the car in for repairs. Not in Chicago where Sears has their main place of business located. Sears would have to have someone show up in your State to court to represent them whether it be the manager from the local Sears you did business at or if they flew someone in from Chicago. A simple call to a local attorney should clear this up as far as being able to sue in NY or not. Link to comment Share on other sites More sharing options...
ShelbyDude Posted July 1, 2008 Report Share Posted July 1, 2008 OK, I spent $2650.00 for the damage. And just to let you know I am having the front re-done. Anyway, I live in NY and the shipping co. is out of state. Can I file in my state and have them coem here? And even if they do nt show up I read that to try and get the $$ bfrom them is not that easy. Is it worth the $2000????? What exactly did they do that cost $2650? Did they replace the front facia or just remove it, sand and repaint? If I recall you had damage under the front, the side rocker panel, the side stripe. What else? Did you get any other estimates from other places? If so, how much were those estimates? Link to comment Share on other sites More sharing options...
YZD263 Posted July 1, 2008 Report Share Posted July 1, 2008 Since I was upset and went ahead and fixed the car before the shipping co. could get there estimated I'm probably not getting any money. COuld I sue? and win? This is the guys quote " I can understand being somewhat distraught Scott, however, the fact remains you denied us the opportunity to mitigate the claim in accordance with our policies and what the law allows us. I have forwarded the claim and the documents to the Risk Manager and our legal group for consideration. Again I will advise once they have reviewed and responded." Although I hate to say that, from my experience (things might be different in the US, which I however doubt), you would normally need to give the opposing party the opportunity to fix the damage it has caused before electing to have it done by someone else. Normally, this could take the form of a demand letter where you state your claim, request a remedy, and set a timetable for the opposing party to comply with your demand. If the other party doesn't comply after being formally put on notice and the deadline has expired, only then could you hold them fully responsible for the cost of the repair, and even then, you also have to mitigate your loss by having the repair made at a reasonable cost (for instance, you couldn't have the repair done at twice the market rate simply because they were previously put on notice and did not comply) I'm not however suggesting however that you wouldn't be entitled to something if you can prove they caused the damage, which I think you could from what I understand the situation is. The fact is, even if they would have been given the opportunity to cure the damage themselves, they would have incurred some cost doing so. Granted that you can prove their responsibility, I believe that you would be at least entitled to that amount. However, there might still be a difference between what the repair cost you, and what it would have cost them. I believe that what you may have lost by not giving them the chance to mitigate is that difference. There is also another aspect that I'm not sure about, which is the issue of punitive damage. In Canada, punitive damages are rarely awarded, the principle being that the purpose of the award is strictly to compensate a party and not to punish the other party beyond such compensation. I know that punitive damages are more prevalent in the US, but I could not tell you to what extent, as I do not practice in the US. What I know however is that US courts have, in recent years, somewhat shied away from awarding outrageous punitive damages. Here is one judgement rendered in that regard by the US Supreme Court, where it overruled a $2 million punitive damage award against BMW for a car that was repainted without buyer's knowledge. http://www.courttv.com/archive/legaldocs/supreme/bmw.html Link to comment Share on other sites More sharing options...
cobrafan Posted July 1, 2008 Report Share Posted July 1, 2008 Just an alternative suggestion. Keep all options open and don't threaten to sue either small claims or otherwise. Keep everything on a positive note. Do the Joe Fridy routine, "Just the Facts mam" don't exaggerate. Right now this issue is still probably is in the hands of the trucking company. You need to be talking with their insurance company and the assigned adjuster. They will know the extent of their exposure and will settle close to that or more. There is a good chance that they will deal with you in good faith to a point depending on , 1) your attitude, 2) the merits of your claim and their exposure. It will boil down to the bean counters, which is really a combination of time and money, theirs. I suspect an adjuster will eventually deal with you regardless of whether the damaged was fixed. It if can be documented, it is good evidence. Some states like Texas allow you to get your car fixed where ever you what to get it fixed, so the fact that you had your car fixed would be a moot point unless they could prove fraud. If everything falls apart, hire the lawyer and skip the small claims stuff. With just a couple letters you may be surprised how quickly this claim can go away to your satisfaction Link to comment Share on other sites More sharing options...
Mustang_Scotty Posted July 1, 2008 Author Report Share Posted July 1, 2008 I hired the shipping company right off Ebay. I guess they put it out on the computer and anybody can pick it up. http://www.unitedroad.com/ Did you hire the shipper directly or did you go thru a broker? The goal would be not only to be able to file in your state but also in your county for obvious reasons. ShelbyDude has a point that since they delivered the car to your home it would be reasonable for you to assume you can file in your state but then again it all depends on where the court considers the contract originated. Kind of like that Ford club lawsuit. That club of course wants the lawsuit to be heard in CT but it was ruled that the contract originated and was executed in California although the "damages" occured in CT the suit will be heard in California. I am no way an expert, actually far from it. I've just observed a good amount of silliness in lawsuit happy California. Steve Link to comment Share on other sites More sharing options...
Mustang_Scotty Posted July 1, 2008 Author Report Share Posted July 1, 2008 ShelbyDude, I got ripped a little here. The front lower fascia was painted, he asked me if I wanted to look shiny like the rest of the car and I said I just want it to look like it did when it was made. That lower finish is duller, like satin. Well he just painted it. My neighbor who does classic cars is taking it in a couple days and going to fix it. Now the side if you saw the pictures was bad. The fender was pulled in off the skirt, the edge was worn down to the paint, and the sticker was worn off. It was fixed very nice except the sticker has some small bubbles in it that you could only see up close around 6". I also found 4 or 5 pinholes in the new paint. Now that doesn't sound bad but it shouldn't be there in the first place. So the money was excessive. I'm just hoping for some relief from this company. http://www.unitedroad.com/ What exactly did they do that cost $2650? Did they replace the front facia or just remove it, sand and repaint? If I recall you had damage under the front, the side rocker panel, the side stripe. What else? Did you get any other estimates from other places? If so, how much were those estimates? Link to comment Share on other sites More sharing options...
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