Hi, ive copied the following from another forum im a member of that might be of some use.
First the disclaimer: I am not a lawyer and this should not be taken as legal advice. Neither myself nor the forum owners or moderators will be held responsible for any consequences that may happen either directly or indirectly as a result of reading this post. If you need to make a claim and are considering taking legal action against a third party be sure to take legal advice from a professional.
I have been asked to summarise some things I have said about my experiences dealing with insurance companies in the past, both in situations that were my own fault and situations that were entirely the fault of a third party. Things are slightly different depending on which of those two any given**situation falls under.
First some background:
If you have an accident that is your own fault, or there is no third party involved, your only recourse is the contract between you and your insurer. Anything that falls outside the scope of that contract (your policy agreement) you are solely liable for (unless otherwise covered under law).
If you are involved with an accident that is clearly the fault of a third party, you have no contract with the third party with respect to that accident but you are still covered under common law. Under common law (which is the backbone of our legal system in this country) any crime must have a victim. What that means in practice is if someone causes harm to yourself or your property then that person has committed a crime and anyone committing such a crime is liable to put things right by LAW. The only other thing that common law covers is honour in your contracts. Anything that is agreed willingly by contract between two or more parties is taken to be honourable, and if either party dishonours that contract they may subject to the force of the law if the other party decides to take them to court.
Statue law is another thing altogether, but most of it covers victimless crimes which aren't really crimes at all according to common law.
An insurance policy is a contract between the client and the insurer. The insurer's part of the bargain is that they agree to take over liability in the event that the insured causes death, harm, or**loss (damage) to someone's property. If they do not uphold their side of this agreement honourably (subject to the terms of that agreement) then they are in breach of that contract and can be taken to court under common law and if it can be shown that they acted dishonourably in respect to their contract then they will be punished accordingly.
As said above, when dealing with a claim on your own insurance for an incident that is your own fault or involved no third party, then the only thing you have to fall back on is the terms of the contract that you agreed with the insurance company. If you want something that isn't covered in that contract (the insurance policy), well tough **** basically.
However when the incident was damage to your property and/or harm to yourself by a third party, there is no contract between you and the third party or their insurance company. As their insurance company have agreed with them to take over that liability, you then deal with the insurance company as if they themselves were the third party who caused you harm, or loss to your property.
Under common law they are then liable to repair any damage to your property and put things right. The cost of this is their problem, and whether they consider the cost to be un-economical is totally irrelevant. They don't have to like it, but they have to deal with it. That is the law, and everyone is equal before the law and they cannot circumvent it just because they are an insurance company.
So how do you actually proceed if you need to make a claim? Well again that depends on the circumstances of the incident.
Firstly, whatever you do DO NOT LET THEM TAKE YOUR CAR AWAY, regardless of who is at fault!**The car is YOUR property, whatever they may try to tell you and they have no rightful claim to it without your agreement (if you accept an offer that may be that agreement). If the car is not drivable, have it recovered to your home or somewhere you can be sure it will not be taken without your permission. If the recovery company takes it away it will be held at a facility and you (or your insurance company) will be charged an extortionate fee for each day it stays there. Obviously the insurance company will want to minimise this and may move it on (often hundreds of miles away) without notifying you first. If later you decide you want your car back, they may charge (or deduct from any payout) a large fee for returning the vehicle to you. So the best thing you can do at this point is ensure your property remains in your possession at all times.
If a claim is your fault (or there was no third party involved):
If the damage was your fault, then the most likely situation is that your insurance company will asses the damage and if they consider the cost of repair too much they will class it as an "un-economical repair" or "write-off". They will then make you an offer (essentially they an offer to buy your property from you).**Most often their offer will be below what you consider the car to actually be worth, but remember that their offer is just that, an offer. You can of course accept their offer if you wish, or you can enter into negotiations to get something you'd be more happy with.
They are unlikely to just say "ok, we'll give you twice that" or whatever, without putting up a fight. Most likely they will ask you to provide them with evidence of your claim that the car is worth what you claim. At this point you should look on Auto-trader, Pistonheads and Ebay (classified ads only as auctions are to variable) and gather as many ads as you can for cars that are as close to your own in spec and milage as possible, AND that are at or above the price you want for it. Leave out any ads below what you think is fair. They will not give you the benefit of the doubt so don't give them any.
I did the above for a claim I made years ago against a porsche 944 that was written off due to a wet road (low speed, no third party and although an accident was deemed my fault). Their first offer was £2900 (minus excess) but after I found evidence that it was worth anything from £3600- double their first offer (including one for the same price as their offer that was in pieces as a project needing attention) they sent me a cheque for another**£700. Not a bad result, but had I left the lowest example out, the next up was £4000 and I probably would have got more (I would say the car was easily worth that).
Don't forget that with older cars high milage is not such a negative as bad maintenance and general condition. Take regular photos of your car showing what good condition it is in and keep receipts or make records of any work done or money spent on it to support your case should you need to. A lower milage old car might actually be less-well maintained than an average milage car for the age so don't be afraid to point out this fact. I have used these tactics successfully to increase a first offer in a third party claim.
Remember, you have paid your insurance for years, when it comes time for them to pay you they will do anything they can do get out of paying you, and will try to get away with paying you the absolute minimum they can get away with (understandable as they are out to make a profit, but that's not your problem). Stick to your guns and be polite but firm in communicating what you want.
If the claim is clearly the fault of a third party:
First be sure**your property remains in your possession as above.
From there you may be offered a repair, or the third party's insurance company may again claim that it is un-economical for them to repair the car (due to age, value of the car etc etc). Now it may well be that the car is so badly damaged that i cannot be repaired, in which case proceed as above but remember there is no contract between yourself and the third party or their insurers, the contract is between them but that does not concern you. This is where common law comes in and under common law they are liable for the damage. If the damage to the car is not actually that bad and can be repaired, then you may insist that they repair the damage. They may not like the fact that it may cost them more than they consider the car to be worth to repair that damage, but as there is no contract between you and them that is tough luck for them. Common law is on your side here and if you insist that you want to keep the car and have it restored to the state it was in before they (their client) damaged it then that is your right under common law. Of course they won't like this and will try to wriggle out of it, but I am certain if you took such a case to a solicitor/lawyer they would tell you that you would win the case if it went to court.
Don't let them bully you, stand your ground and be firm about what you want and don't back down.**Remember you can also claim for loss of earnings so although it may be a lot of time and hassle to deal with this, that is all due to the third parties actions and is part of the claim (keep notes and records of everything, phone calls, letters, money spent time taken off work to deal with the claim etc etc).
I hope many of you find this story interesting, but remember if you are in a situation like this you would be well advised to take professional legal advice (from an independent solicitor) as a precaution even if you feel confident dealing with the situation yourself.
At 10,000 rpm , no one can hear you scream.