Property Damage

This guide is intended for those who have experienced an automobile collision where no injuries occured. The complementary guide may provide valuable information when settling your claim with an insurance company without an attorney.

If you are involved in a motor vehicle accident, are not at fault, and your vehicle is damaged, we recommend that you obtain the Motor Vehicle Accident Report as promptly as possible.

If the accident occurred in Fort Smith, the accident report will be available free of charge below under "Other Helpful Links".

What if I have collision insurance coverage?

What if I don't have collision insurance coverage?

How do I estimate the amount of property damage?

Is my vehicle a total lost?

What is a total loss?

What is CCC value?

How do I figure other damages?

Should I cash the check from the insurance company?

Tell me more about filing a lawsuit.

What are "Small Claims"?

Tell me more about a civil lawsuit.

How do I prove my damages?

Other Helpful Links

Small Claims Form

Accident Report

Download Complete Property Damage Guide

2. Make a claim with the at-fault driver’s insurance company if a claim has not already been reported. You can generally obtain the name and insurance policy number of the at fault driver on the Accident Report. For a list of insurance company claim’s office telephone numbers, click here. If the insurance company is not identified in the list, you can generally find a local agency for the insurance company in the local telephone directory. Call the agency to obtain the telephone number of the at-fault driver’s insurance company. If you cannot find the insurance company in the local telephone directory, perform a search from an internet search engine, such as Google or Yahoo, for the insurance company. If the company has an internet web site, you can attempt to obtain contact information from the web site. As a last resort, you can call the Arkansas Insurance Department at 1-800-282-9134 to obtain contact information. (Return To Top)

3. Determine the amount of property damage. The best way to do this is to determine the cost of repair. (Return To Top)

• If the vehicle is drivable, take it to a body shop to obtain a written estimate. We recommend obtaining at least two written estimates in any claim.

• If the vehicle is not drivable and you have collision coverage, your insurance company will send an adjuster to the vehicle to determine the amount of damage.

• If the vehicle is not drivable and you do not have collision coverage, you should attempt to have an auto body shop inspect the vehicle to provide you with an estimate.

4. Determine if your vehicle is a total loss. (Return To Top)

• If the cost of repair of your vehicle exceeds 70% of the value of your vehicle, the vehicle should be declared a total loss. You can determine the value of your vehicle at the NADA’s web site, http://www.nada.com. While Kelley Blue Book, http://www.kbb.com, is accepted by some insurance companies, we have found that insurance companies more readily accept the NADA valuations.

5. If the vehicle is a total loss, and the insurance company uses a service other than NADA or Kelley Blue Book, you should ask how the value of your vehicle was determined. If necessary, be prepared to challenge the value of your vehicle if a method other than NADA or Kelley Blue Book is used. We believe that the best method is to obtain a written statement from an automobile dealer (preferably the dealership that sold you the automobile if if was purchased from a dealer) setting forth the value of your vehicle if it had not been damaged in the accident. A copy of the statement from the dealer should be supplied to the insurance company. Some insurance companies utilize the services of CCC Information Services, http://www.cccis.com, to provide an evaluation of the value of your vehicle. (Return To Top)

6. If CCC Information Services is used to value your vehicle, you should ask for a copy of the CCC valuation. You should compare the CCC valuation to the NADA valuation, http://www.nada.com. Remember, CCC charges insurance companies. Unless it was saving money over NADA valuations, insurance companies wouldn’t be using CCC. (Return To Top)

• CCC will provide a valuation based on, what it claims are, comparable vehicles. These will generally be vehicles of the same type, same year, comparably equipped, in the same geographic area.

• In many instances, we have found that the CCC valuations are well below NADA valuations. We believe that CCC, at times, may use vehicles priced for a quick sale because the seller needs money quickly. Vehicles offered for quick sale generally sell quickly. You generally cannot purchase a vehicle at a quick sale price because the vehicle sells so quickly that it is not available when you try to buy it. Using vehicles offered for quick sale in a CCC valuation is both unrealistic and unfair.

• Be prepared to challenge a CCC valuation.

• Call the listed telephone numbers on the CCC valuation to see if the comparable vehicles are available for purchase. If they are not available at the time, you should tell the insurance company that they are not comparable vehicles because they are not available for purchase.

• If a comparable vehicle is several hundred miles away, you should challenge the vehicle as being comparable because it is not in your geographic area. It would be unfair for you to have to travel several hundred miles to obtain the vehicle without being compensated for both your time and expense in traveling to purchase the vehicle. Therefore, be prepared to challenge vehicles that are not located close to your location.

7. Other Damages. In addition to the cost of repair of your vehicle, you may be entitled to additional damages. (Return To Top)

• Sales Tax if Your Vehicle is a Total Loss. If your vehicle is a total loss, you are entitled to the value of sales tax on your vehicle. The easiest way to determine sales tax is to call the Revenue Office, http://www.state.ar.us/dfa/osra/osra_revenue.php and ask for the amount of sales tax if you were purchasing a vehicle with the known value of your vehicle.

• Loss of Use. You are also entitled to compensation for the loss of use of your vehicle for the number of days that your vehicle will be out of service. This will begin on the day of the accident (unless your vehicle has only minor damage and you can continue using the vehicle until repairs begin) until either: (a) repairs are complete if the vehicle is not a total loss; or (b) you are compensated for the value of your vehicle if the vehicle is a total loss.

• Most insurance companies will arrange for a rental vehicle at no cost to you, rather than agreeing to pay a value for loss of use.

• Because it is difficult to determine the value of loss of use, in those cases where you have to file a lawsuit to obtain compensation, we recommend contacting a car rental company, such as Enterprise Rent-A-Car, and obtain a written statement as to the daily rental cost of a vehicle that is similar to your damaged vehicle. We recommend Enterprise Rent-A-Car because it appears to be the most widely used car rental agency for insurance rentals in Arkansas.

8. Summary of Damages.

Cost of Repair or Value of Your Vehicle if a Total Loss ___________

+ Value of Sales Tax, only if your vehicle is a total loss ___________

+ Loss of use $_____ * ________(number of days until vehicle is repaired or value of vehicle is paid for if a total loss)    ____________

TOTAL DAMAGES                                                 $___________

9. The at-fault driver’s insurance company may provide you with a check for repairs to your vehicle before repairs on the vehicle begin. We frequently see repair estimates that are later determined to be incomplete because not all vehicle damage can be seen until the repairs actually begin. Therefore, we strongly caution against cashing the check until all repairs are complete unless the other insurance company promises in writing that it will pay for any repairs not included in the estimate that are later determined to be necessary to repair your vehicle.
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10. If you receive adequate compensation and your vehicle is paid for, your claim will then end. We are happy that we were able to assist you and that you did not have to file a lawsuit to recover for the damage to your vehicle. (Return To Top)

11. If you did not receive adequate compensation, go to Step 12.

12. Filing a Lawsuit. If the at-fault driver’s insurance company does not pay for your damages and you desire to pursue a claim, you must file a lawsuit against the other driver. Arkansas law does not permit you to sue the other driver’s insurance company. (Return To Top)

• If you don’t have collision insurance coverage or desire to pursue a claim against a third party, if the amount of damage to your vehicle is $5,000 or less, you can file suit yourself, without an attorney, in an Arkansas Small Claims Court. Small Claims Courts are a division of the District Court, formerly known as Municipal Courts. When filing in the Small Claims Division, it is extremely important that the claim form that you are filing (Small Claims Form) shows that it is in the Small Claims Division and NOT in the Civil Division of the District Court. YOU CANNOT FILE A SMALL CLAIMS LAWSUIT WHICH SEEKS MORE THAN $5,000 IN DAMAGES. More Information on Small Claims Courts is available at http://courts.arkansas.gov/documents/small_claims_info.pdf

• Venue. Venue is the place where you must file your lawsuit. Ark. Code Ann. § 16-17-706 (an Arkansas statute or law) provides that small claims lawsuits for property damage must be brought in either the county where the accident occurred or where the Defendant (the other driver) resides at the time the lawsuit is filed. You must file in the Small Claims Division of the District Court in one of these locations to bring a small claims lawsuit.

• If there is more than one District Court in the County, such as in Sebastian County where there is a District Court in both Fort Smith and Greenwood, you should contact the District Court to determine the Court’s geographical jurisdiction to make sure that you are filing in the correct Court. Please note:

(a) If you are suing in Sebastian County, the Small Claims Division of the Fort Smith District Court has jurisdiction over Fort Smith only. You may bring a claim in this Court only if the claim arose in the city limits of Fort Smith. You can reach the Court at this number: (479) 784-2377.

(b) If your claim arose in Sebastian County anywhere other than in Fort Smith, the claim must be brought in the Small Claims Division of the Greenwood District Court. You can reach this Court at this number: (479) 996-6501.

13. You should fill out the Small Claims Court Claim Form accurately. In order to sue the at-fault driver, it is necessary that you show that the driver was negligent. In Arkansas, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in the case. If the other driver disobeyed a traffic law, such as following your vehicle too closely, disregarding a red light, or failing to yield, this is evidence of negligence and generally will be accepted as negligence. (Return To Top)

• Comparative Negligence. You should be aware, however, that if you were also negligent, that the amount of your negligence will reduce any judgment in your vehicle. In addition, if your negligence is equal to or greater than the negligence of the at-fault driver, you cannot recover at all.

14. The other insurance company may have the case transferred from the Small Claims Division of the District Court to the Civil Division of the District Court. Whether the case is in the Small Claims Division or Civil Division, you can still represent yourself. There are a few things to know in these circumstances. (Return To Top)

Discovery

• INTERROGATORIES and REQUESTS FOR PRODUCTION OF DOCUMENTS. If the other driver is represented by an attorney, the attorney may send you Interrogatories to answer or ask you to produce documents. You must respond to the Interrogatories or Requests for Production of Documents, in writing, within 30 days.

• REQUESTS FOR ADMISSIONS. If the other driver is represented by an attorney, the attorney may send you Requests for Admission to answer. You must respond to the Requests for Admission within 30 days or they will be admitted. We have provided a sample set of Responses to Requests for Admission to help you understand how to Respond. In general:

• If another attorney asks you to admit something that you known is inaccurate, you will simply deny the request for admission.

• If another attorney asks you to admit something and you do not know whether it is accurate or not, you are required to make an investigation to try to determine if the matter is accurate or not. If, after investigation, you cannot determine whether the matter is accurate, you should state that you have made an investigation and can neither admit nor deny the matter.

• If another attorney asks you to admit something that is accurate, you are required to admit the matter.

• Unscrupulous attorneys may ask you to admit matters that will destroy your case, like asking you to admit that the other driver was not negligent, that you were negligent, or that you were more negligent than the other driver. Some insurance company attorneys do this to try to trick litigants representing themselves, hoping that you just won’t answer the Request for Admission. Remember, if you don’t answer the Request for Admission, it is deemed admitted. You must respond within 30 days and deny the Request for Admission, or it will be admitted.

Evidence

• Arkansas has Rules of Evidence that apply to all litigation. In Small Claims cases, the District Court Judge may relax the requirements of the Rules of Evidence. There are a few things that you should know.

• The Arkansas Model Jury Instructions sets forth the measure of damages, or the way to calculate damages, for property damage in a motor vehicle accident:

“The difference in the fair market value of [your] automobile or truck immediately before and immediately after the occurrence plus a reasonable amount for loss of use. In determining any difference in market value, [the judge] may take into consideration the reasonable cost of repairs.”

• Notice that the instruction does not contain the requirement that the insurance company has to pay for your sales tax on a vehicle that is a total loss. However, Ark. Const. Ark. Const. Art. 2, § 13 provides that:

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.”

• Because this provision of the Arkansas Constitution provides that all persons are entitled to be completely compensated for all injuries or wrongs, most judges will allow recover of the sales tax value as an element of damages.

15. How do you prove your damages? (Return To Top)

• If you are planning on introducing an estimate or written statement from a car rental agency, it is always best to have the person who prepared the estimate or statement present at Court to testify and to be cross-examined about the estimate and its validity. If the person cannot be in Court, you can prepare an Affidavit for the records custodian (anyone in charge of the records) of the business which prepared the estimate or statement, if the estimate or statement is a business record, in accordance with Ark. Code Ann. § 16-46-108. (Small Claims Form) This Affidavit must be prepared, signed under oath in front of a Notary Public, and filed with the Court two weeks before trial. A copy must also be provided to the Defendant.

• In addition, as the owner of the vehicle, Arkansas law permits you to give your opinion as to the value of your vehicle. The Judge does not have to accept your opinion but you are entitled to give the opinion. If a Judge asks you to cite him or her to authority that you can give the opinion, ask the Judge to review the case of Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996).

We hope that you are able to successfully use this guide to pursue your claim for damages to a resolution that is acceptable to you.