DennisBeaverJanuary 28, 2007 (Original publish date) • By Dennis Beaver

In our legal system, before you can be found liable for someone’s injury or damage to their property, negligence–causation–has to be shown. For example, before my auto insurance company has a legal obligation of paying for an accident I am involved in, it must be shown that I am at fault.

But what happens when it is unclear who is entirely to blame — when I am potentially at fault, but you also may have contributed to your very own injury? Is my insurance company still responsible to pay for all of damage?

That was the real question raised in a well-written (and I have to admit a bit funny) e-mail sent to me by Diane of Fortuna. In April, 2006, she took her late husband’s 1986, “ugly Ford Ranger with a lot of miles, likely well over 100,000” into a local service station for a complete brake overhaul. No written estimate was provided before the work was done, and the final price paid was several hundred dollars more than that which was orally quoted — a clear violation of California Law.

As Diane told me, “After paying for the repairs, I took two very brief trips into town, totaling about 4 miles, and then the next day, while driving the vehicle to Eureka it began to drive sluggishly and then just quit running entirely. We lifted the hood and discovered the radiator cap on top of the battery! We put water in the radiator, started for home, but had to leave it at a Park N’Ride when steam was pouring out of it as I was afraid it would not make it home,” she wrote.


“It was a really ugly car, and my husband painted it to look like a wreck to discourage anyone from stealing it. I know it sounds dumb, but I didn’t lock it, and it was stolen, hot-wired and recovered a block away a few days later by the police. The engine block is completely ruined.”

Key Questions: Who did What and When?

Diane gave me the name of the service station owner who admitted there “was a real chance” that somehow his employee forgot to put the radiator cap back on after checking the fluid levels. “I felt real sorry for her,” he said, but never could explain why he didn’t discuss the justification in putting over a thousand dollars in brake work into a 20 year old, high mileage vehicle worth about $800. “I pay a lot of money for insurance,” the shop owner said, “and do hope my insurance company takes care of her.”

Insurance company’s position — it’s her fault!

Initially when I discussed this with the shop’s insurance company, the claim’s supervisor blamed Diane for the mess she is in. “How do we know when the engine was ruined? Her failure to lock the car resulted in it being easily stolen, and we are standing by our position, denying the claim,” Sacramento based, Allied-Nationwide Insurance Supervisor Rob Weber at first told me. But there was something about his attitude that I liked, and it seemed as if he would be open to re-examining the claim after an appeal based on law and simply doing the right thing.

“Bob, your insured admitted that there is indeed a chance that they left that cap off. Judging by the way the car behaved on the drive to Eureka, according to my research, that was probably when the engine was damaged, but admittedly we do not really know for sure because of the theft. It is clear that someone left that radiator cap off, and Diane had no reason to open the hood. She is a widow, out the $1100 for a brake job for a car worth far less, needs a new engine, and is in exactly the same situation regardless of the theft as she would have been in had she attempted to drive the car home,” I argued.

“You have it in your power to do the right thing and help her out in some way. She will accept $800, which is the value of the vehicle and far less than what she lost on the brake job. It’s your call.”

Bob felt that $500 was a reasonable compromise, believing that by continuing to drive the car, Diane may have caused more damage. I told him that I doubted it would be an acceptable figure, but he mailed her a $500 check and release anyway. She rejected that offer, returning the check.

Formal complaint with the state B.A.R.

The service station, in my opinion, clearly violated the California written estimate law and seems primarily to blame for the destruction of her car’s engine. Diane felt the shop owner should have offered something himself–which he did not–and that the way she was dealt with was completely unacceptable.

I agreed with her decision. The consumer in this type of case always has the right to file a complaint with the Bureau of Automotive Repair. “The failure of Allied to resolve this legitimate dispute could put their insured’s B.A.R. license at risk,” I warned a different Allied adjuster who phoned some weeks later. My warning apparently fell on deaf ears.

Diane did contact the Bureau of Automotive Repair in Sacramento, and confirmation was received of a violation of the written estimate regulations. Without a required signed written estimate before work is done, those charges could very well be seen as illegal.
After a careful examination of the facts, the B.A.R. investigator concluded that Diane was owed a refund of what she paid the shop for the brake job. Interestingly enough, Allied Insurance — which only felt $500 was appropriate months earlier — suddenly came up with $1200 in settlement.

Diane has accepted their check and the case was kept out of Small Claims court. Had it gone further, a Judge could have easily awarded not just a refund of the brake job, but the actual value of her car.

“I didn’t realize the importance of a written estimate, but now I do, she told her in a recent conversation.
Diane is not alone in that.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.