A Basic Overview
|Is there a statutory basis controlling diminished value claims ?||
|Is there favorable Reported case law for Diminished Value Claims ?||
|Can my Collision Coverage cover the Diminished Value of my vehicle ?||
|Can my Uninsured Motorist cover my Diminished Value ?||
|What is the small claims court authority limit ?||
|What is the civil court authority limit in New York City ?||
|What is the Statute of Limitations to recover my diminished value ?||
|Are “iCan” appraisals accepted into evidence ?||
An Objective Overview of
Diminished Value Laws
in New York as reviewed by
J. D. Howard
NEW YORK IS BECOMING A LESS PROBLEMATIC DIMINISHED VALUE RECOVERY STATE …
There is an over-abundance of Diminished Value appraisal services being promoted on internet search engines. Sadly, too many of those sites are run by unqualified hustlers out for a quick buck. There are only a hand full of qualified service providers that know what they’re doing and can be relied upon to tell the truth. This web site is among that hand full.
As noted above, New York is becoming a LESS PROBLEMATIC (see "UPDATE" of 03/07/2022) Diminished Value Recovery State. If your vehicle sustained collision damage due to the negligence of the other party, that other party (by and through their insurance company) should owe you for any Post-Repair Residual Diminished Value to your vehicle. However, the most recent “reported” Case Law precedent for such recovery, in New York, is severely limited. That “reported” case law precedent is … Franklin Corp v. Prahler (932 N.Y.S. 2d 610, 616) circa 2011. The Roots of that case law go back to Johnson v. Scholz, circa 1947. There just aren't a lot of folks driving a 1947 Studebaker anymore !
The Franklin Corp v. Prahler case Limited Post-Repair Residual Diminished Value recovery to unique vehicles of potential Appreciation. Claims for recovery of your Residual Diminished Value, on vehicles that DO NOT fall within that narrow category, will be problematic. Because of this legal challenge, our Recovery Guarantee Benefit Will Not Apply !
SPEAKING PLAINLY . . .
If your claim for reimbursement of Post-Repair Residual Diminished Value is destined to fall within the jurisdiction New York State judicial system, your chances of a successful recovery are Slim . . . (UPDATE: Recent successful recoveries, especially with Tesla vehicles, within the Small Claims Division, tend to indicate that "Reason" is gaining a foot-hold in the New York State judicial system However, recovering your post-repair residual diminished value is still a long-shot) !
NOTE: There is a legal treatise known as Restatement (Second) of Torts § 928 (a)(b) which recognizes the accident victim’s right to be Made Whole (including Post-Repair Residual Diminished Value). Fortunately, lower courts are more-and-more applying the principles of this treatise in seeing to it that such accident victims are Made Whole.
These Small Claims Court victories, recognizing the financial damage sustained by the not-at-fault victims of traffic accidents, have not been appealed (so far) by the defendant’s insurance company. IF that case were to be reviewed by the Appellate Court and the Appellate Court were to uphold the decision of the lower court, the Appellate Court decision would become a “reported” Case Law precedent that would over-turn the current 70 [+] year old precedent. Such an Appellate Court decision would be antithetical to the financial best interests of the auto insurance industry as a whole.
UPDATE . . . [03/07/2022] . . . Allstate Insurance Company has now acknowledged the right of a 3rd Party Claimant to recover the Post-Repair Residual Diminished Value of their negligently damaged vehicles !
For the average person, enforcing their Right to Recover their Post-Repair Residual Diminished Value is most easily pursued by utilizing the Small Claims Court (kind of a "Judge Judy" type of environment) system. No attorney is necessary. The Rules of Civil Procedure are more informal. Costs are more reasonable (recoverable with judgment) and the process is faster. Though Small Claims Court authority is limited to only $5,000.00 (outside of New York City), recovery of that amount + costs + potentially our appraisal fee, can be preferable to hiring an attorney to file in District Court and have your case drag out for years.
NOTE: Check with your tax advisor. You may (operative word “may”) be able to deduct your Post-Repair Residual Diminished Value from your income taxes as an “Uncompensated Casualty Loss”.
NOTE: IF you have a companion Personal Injury claim, arising from the same accident, DO NOT file suit solely for your Post-Repair Residual Diminished Value. New York does NOT allow a plaintiff to “Split” their causes of action. Seek Further Advice !
Truth. . . MATTERS !
Notwithstanding what other web sites may have you believe, there are only 3 (yes, only 3) general categories of Diminished Value that impact consumers …
- Immediate / Inherent Diminished Value is the Loss of Value of a damaged vehicle immediately upon infliction of the damage.
- Post-Repair Residual Inherent Diminished Value is, as the title implies, that portion of the Inherent Diminished Value that was Not restored through the repair process.
- Repair-Related Diminished Value is that portion of a vehicle’s Loss of Value that is directly related to a less-than-optimal repair work product. Repair-Related Diminished Value is Not owed by the at-fault party. After all, it is not their fault that repairs to your vehicle were defective. UNLESS …
- The insurer of the at-fault party directed the repairs to a specific repair facility (or influenced your selection of repair facility). At that point, the insurance company is on-the-hook for repair defects and it becomes more of a Repair Warranty claim than a Diminished Value claim.
- A Repair Warranty claim would require physical inspection of the repaired vehicle. We may be able to recommend a local resource to help you facilitate your Repair Warranty claim.
FYI . . . DRP Agreements . . .
DRP (Direct Referral Program) Agreements do exist (in writing). Under the terms of a DRP agreement, a body shop surrenders virtual control of their facility, to an insurance company, in exchange for that insurance company’s promise to promote that body shop to their insureds and claimants. All decisions as to method of repair and parts to be used are dictated by the insurance company. We’ve actually read DRP agreements that stated “the vehicle owner shall remain ‘Blind’ as to any difference of opinion that may arise between [insurance company] and [this] shop”.
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