If I am involved in an automobile accident can I make the other driver's insurance company total my car rather than fixing it?
No. When you are the innocent party in an auto accident, Texas law requires that the at–fault driver pay the lesser of the reasonable cost of repair or the fair market value of your vehicle at the time of the accident. Current Texas law allows the other driver's insurance company to make the decision regarding whether a vehicle is totaled.
As a Tyler auto accident attorney I am frequently confronted with the situation wherein my client is driving a new car and is involved in a substantial accident. My client understandably does not want a car that is often only a few months old that has sustained substantial damages and undergone extensive repairs. Unfortunately, Texas law simply does not allow us to force the at-fault driver or his insurance company to provide the victim with a new vehicle in this situation.
Most insurance companies have a formula pursuant to which they determine whether a vehicle is a “total loss”. If the cost of the repair of the damaged vehicle plus the salvage value of the damaged vehicle exceeds the fair market value of the vehicle prior to the accident then obviously it does not make sense to repair the vehicle and it is “totaled”. For example, if a $30,000.00 vehicle is involved in a substantial auto accident and sustains damage which will cost $20,000.00 to repair and the damaged vehicle has a salvage value of $15,000.00 then the vehicle is totaled.
This analysis gets a little more complicated in many situations because most insurance companies total a vehicle at a number somewhat less than the fair market value of the vehicle. A common “total” amount is 85% of the fair market value of the vehicle. This is because the cost of repair is initially assessed prior to the time that the repairs begin and it is not uncommon for additional damage to be found after repairs begin and the vehicle is disassembled. Thus if the total of the salvage and the cost of repair gets anywhere close to the fair market value of the vehicle the insurance company will likely total the vehicle. Otherwise they would frequently find themselves in a situation where the cost of repair was considerably more than anticipated and they were going to lose money because they did not total the vehicle.
I often suggest to my clients that one of the best ways to deal with the fact that we cannot make the insurance company total their vehicle is to get the absolute best repair possible. Automobile manufacturers produce a lot of new vehicles which contain defects in workmanship and the simple reality is that a top notch auto repair shop is going to give your vehicle a lot more personal attention than it received from the manufacturer. Properly repaired by a top notch repair shop your vehicle will likely be in better condition than it was on the showroom floor.