Liability insurance limits

[davidb7]

What is the name of your state (only U.S. law)?
California

Happy holidays everyone!
Any advice is appreciated

My new car has been rear ended on a highway by a young driver who claimed that he was staring at Ferrari driving in the adjacent lane and did not notice that I was slowing down. The car was not drivable and was towed to my house to avoid storage charges at towing company lot.
Person at fault rejected to speak to his insurance (Wawanesa), so they accepted liability for an accident only after police report arrived (police report said that person at fault was driving in violation of VC 22350 and was cited and on top of that office accused him of possibly racing with Ferrari)
Two weeks after an accident an estimator from his insurance company came to take a look at the car and estimated damages to be only $10k. My car bent to an extent where doors will not close and rear axel is not straight in addition it was only 4 days old with 300 miles. I have found the most professional body shop in my city and chose it to be repaired there. Upon completion of their estimate damages went up to $31k and three moths to fix it. I did not won't this car after such a big repair so I hired an attorney. After a month of negotiation they considered the car a total loss because they knew we would claim diminishing value and it will be huge. Now they are offering to pay for the car, but it turned out that person at fault has a limit of $50k for proper damages. My car is worth $52, but I was willing to take a loss of 2k and hope to recover them through personal injury. However, now they say they will subtract towing, storage and rental car for two moths from that because it is considered a part of property damages (total of about $10k).
1. Is rental car and storage fees indeed considered part of property damage limit?
2. What is the best way to go for me? Should I sue that person for property damages or take insurance money? (he is under 21, doesn't own anything and his car was totaled as well)

I tried going through my insurance but they don't want to total the car, which seems strange because according to my math they won't loose a dime.
If I go thorough another person's insurance they have a limit of $50k and they get to keep car's salvage value (estimated around $14k). If I go through my insurance company they pay $52 to me, and get to keep car (52-14=38) but they subrogate another party's insurance for the entire amount because after they pays all fees and rental there is still $40 left in limit.
3. Is something wrong with my understanding of subrogation?

 

[ecmst12]

Yes, towing/storage/rental is part of the property damage claim. Going through your insurance is going to be your best plan.

 

[davidb7]

Yes, towing/storage/rental is part of the property damage claim. Going through your insurance is going to be your best plan.

I read in another place that rental car is "loss of use" and is not part of property damage? Do you which official source, specific to my state (California) can I use to verify that information?

 

[adjusterjack]

I read in another place that rental car is "loss of use" and is not part of property damage? Do you which official source, specific to my state (California) can I use to verify that information?

Your "official" source is your own auto liability policy which is likely to be identical to the other driver's liability coverage.

Once you read it you will note that, under property damage liability, there is one limit for property damage that applies to all monetary damages that result from that property damage and that (in the property damage liability section) there is no separate coverage for any other loss that you suffer due to the property damage.

You are free to make the claim under your collision coverage (and rental reimbursement, if you have it).

 

[Zigner]

OP doesn't want to go through his insurance because he'll have to keep the car...

 

[ecmst12]

Loss of use is part of property damage. Everything is part of either property damage or bodily injury, when you're talking about a liability claim. Those are the only 2 options. It's obviously not bodily injury, so it's property damage. Now, if you're talking about your OWN policy, you might have a separate coverage for rental. But that's not relevant here.

 

[justalayman]

I tried going through my insurance but they don't want to total the car, which seems strange because according to my math they won't loose a dime.

So what was your car worth prior to the accident (and no, it wasn't the purchase price. There is an instant depreciation upon titling it. It is now a used car rather than the new car your purchased.). Does your $52,000 take that loss of value into consideration?

You say the current value (in its damaged state) is about $14,000. Repairs are $31,000. If the pre accident value exceeded $44,000, then it is totaled. You would be due the $31,000 repair. Using your stated value of $52,000, the fact is, your car is not totaled.

 

[ecmst12]

I would honestly be VERY surprised if OP's insurance did NOT end up totaling the car if he proceeds with that claim. Add up the cost of a rental for 3 months and the likelihood of additional damage once they start the teardown and the frame damage...I don't think it would be a hard fight to get it totaled.

 

[adjusterjack]

they subrogate another party's insurance for the entire amount because after they pays all fees and rental there is still $40 left in limit.
3. Is something wrong with my understanding of subrogation?

When your company subrogates, it may subrogate for the full amount of the claim but it is also subject to the policy limits of the other driver's insurance and would have to settle for less than the full amount of the claim because your insurance company will have to release the other driver from any further claim.