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 Statute of Limitations to recover my diminished value ?||
|Are “iCan” appraisals accepted into evidence ?||
An Objective Overview of
Diminished Value Laws
in South Dakota as reviewed by
J. D. Howard
SOUTH DAKOTA IS AN EVOLVING 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, South Dakota is an Evolving 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, there is no “reported” Case Law precedent for such recovery in South Dakota. When there are lower court decisions in favor of the financial damage sustained by the not-at-fault victims of traffic accidents, the defendant’s insurance company chooses to NOT appeal that trial court’s decision. 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 apply to future similar cases. Such an Appellate Court decision would be antithetical to the financial best interests of the auto insurance industry as a whole.
Fortunately, 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 Residual Post-Repair 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.
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 $12,000.00, 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: IF the accident were your fault ... 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. South Dakota 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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