Escondido, CA asked in Consumer Law for California

Q: Can i win this law suit?

I just recently moved from Kansas City to San Diego

I hired a car moving company to move my car from kc to San Diego

when the car arrived its bumper was completely gone, when i confronted them about this they claimed the bumper "was loose"

When i made the claim to fix this issue, they denied it saying it was out of there control and not their problem.

Except its 100% their problem because i'm suing them for abusing a tiny vague rule in their contract.

"may flower is not responsible for any damages that is out of their control"

They are using this incredibly vague rule to get out of reimbursing me, Of which is insane.

Their job is to get my car in one peice from A to B without any damages. This is common sense right?

if it ACTUALLY fell off maybe i couldn't do anything. However it is so obvious that bumpers dont just fly off.

it was probably stolen, however they are hiding that from me.

My HT appraisal agent has inspected the vehicle and has stated no damaged clips.

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3 Lawyer Answers
William John Light
William John Light
Answered
  • Riverside, CA
  • Licensed in California

A: Don't know why you want to fight with them. You can make a claim with your insurer and get your car promptly fixed. If your insurer recovers from the trucking company, you will get your deductible back.

If you insist, get your car fixed, out of your own pocket, or at least get an estimate for repair from an actual body shop. Next, file suit in Small Claims. You can recover the cost of repair, plus loss of use while your car is unavailable. That is usually daily rental value of a similar vehicle.

You can pursue theories of contract, negligence, bailment, and the Carmack Amendment. The Carmack Amendment applies when motor carriers and surface freight forwarders are required to issue receipts and bills of lading when procuring interstate transportation or transportation services. (49 U.S.C. §§ 14706, 13501).

Carmack subjects a motor carrier transporting cargo in interstate commerce to absolute or strict liability for “actual loss or injury to property.” (Missouri Pacific R.R. Co. v. Elmore & Stahl 377 U.S. 134, 137 (1964)). To meet your burden of proof, you must only show that:

(1) Goods were delivered to the carrier in good condition;

(2) Goods arrived in damaged condition; and,

(3) The specified amount of damages.

Under the Carmack Amendment, it is the moving company's burden to establish that it was free from negligence and that damage was due to one of the excepted causes relieving the carrier of liability. (See American Nat’l Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Systems, Inc., 325 F.3d 924 (7th Cir. 2003)).

If your claim is successful, you can seek recovery of attorney fees (if any) under Campbell v. Allied Van Lines, Inc. 410 F.3d 618 (2005) and 49 U.S.C. section 14708(d).

Maurice Mandel II agrees with this answer

Marco Antonio Torres
Marco Antonio Torres
PREMIUM
Answered
  • San Diego, CA
  • Licensed in California

A: I agree with Mr. Light - your damages are at present the deductible you paid ahead of any claim paid by the insurance company. Let the insurance company do the heavy lift on this. If the insurance companies decided not to pursue the moving company and/or doesn’t recover enough to cover the entire deductible then go to small claims court.

Maurice Mandel II
Maurice Mandel II
Answered
  • Consumer Law Lawyer
  • Newport Beach, CA
  • Licensed in California

A: Typical Attorney Answer: MAYBE. First what is a "win" to you. If you think you get a new car, NO. If you get your care fixed, PROBABLY. The good reason for you to not get it fixed by your own insurance is either you don't have any or you don't want your premium to go up. To take them to small claims court you need to have at least 3 estimates from different companies to repair the vehicle (go to the 3 most expensive places you can find! you don't have to have them fix it), you need photos of the car before it was shipped- you took photos as it was being loaded from all sides, right? And you need estimates for a RENTAL CAR during the time the car is in the shop (you are entitled to loss of use damages too, but most people forget that); go to the most expensive rentals, but it has to be a comparable car, you cannot rent a humvee. You want to prove the condition before, the condition after, the cost of repair and the loss of use. That is what you are entitled to. I like Mr. Light's reference to CARMACK- 49 U.S.C. §§ 14706, 13501, and if you want to use this, you better have a copy for the judge to look at, because he won't know the special rules about common carriers unless he had such a case already. Google it online, from Mr. Light's entry. He always finds these obscure statutes that work great, but no one heard of them. Good Job!!

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