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Discussion Starter · #1 ·
I have a legal interpretation question as it relates to "comparable" car rental obligations of the insurance company of an at fault driver. We all know that an at fault driver is required to cover all damages caused from an accident. Consider that a driver is 100% at fault and damages a Subaru. You make a claim with their insurance company which they accept responsibility. You ask them to cover a rental for the time of the repairs and they agree but authorize a rental that you believe is not "comparable". Rental firms often break their fleet into various levels of cars such as compact, mid size, standard, etc. We can clearly see a pattern having to do with size. While we Subaru owners, particularly Ascent owners can justifiably say "size matters", can we say AWD matters? Suppose the rental firm can rent you a vehicle that is the same size but does not have AWD. Is that acceptable? Suppose you live in Colorado and it is winter where chain laws limit where you can travel unless you have AWD or 4 wheel drive or chains. Does the non AWD or non 4 wheel drive vehicle of the same size category fulfill their legal responsibility of providing a comparable vehicle?

This is the situation I am in (not with the Ascent (thankfully) but with another Subaru we own). The rental period is expected to be up to 10 days. Enterprise has four Imprezas in their regional fleet.
Some quick research uncovered a posting that listed some case law which I have yet to read through. Below is their posting. What are your thoughts?


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Virtually all states recognize the right of an automobile owner to recover damages for the loss of use of the damaged vehicle while it is being repaired. See, Kopischke v. Chicago, St. P., M. & O. Ry. Co., 230 Minn. 23, 30–31, 40 N.W.2d 834, 839 (1950); Hanson v. Hall, 202 Minn. 381, 387–388, 279 N.W. 227, 230–231 (1938); Restatement (Second) of Torts § 928(b) (1979); 4A Minn. Prac., Jury Instr. Guides–Civil CIVJIG 92.10.

I found no cases supporting ABC’s internal policy that it was only obligated to provide “transportation.”

I found several cases stating that the reasonable value of the loss of use of an automobile is measured by the rental cost of a comparable vehicle. See, e.g., AT & T Corp. v. Lanzo Const. Co., Florida, 74 F. Supp. 2d 1223, 1225 (S.D. Fla. 1999) (“loss of use damages are measured by the amount necessary to rent a similar article or other suitable article within which to perform the services usually performed by the damaged article during the period of repair”); Lewis v. Lawless Homes, Inc., 984 S.W.2d 583, 586 (Mo. Ct. App. 1999) (“The value of its use is the cost of renting a similar piece of equipment”); Papenheim v. Lovell, 530 N.W.2d 668, 673 (Iowa 1995) (awarding loss of use damages based on rental rate for full-size vehicles similar to plaintiff’s damaged full-size vehicle); Chlopek v. Schmall, 224 Neb. 78, 89, 396 N.W.2d 103, 110 (1986) (“The reasonable value of the loss of use of personal property is generally the fair rental value of property of a like or similar nature or the amount actually paid for rental, whichever is less”); Lamb v. R.L. Mathis Certified Dairy Co., 183 Ga. App. 455, 457, 359 S.E.2d 214, 216 (1987) (“plaintiff would be entitled to reasonable rental value of a comparable car for a reasonable length of time to have the body repairs completed”); Lenz Const. Co. v. Cameron, 207 Mont. 506, 509-10, 674 P.2d 1101, 1103 (1984) (“We do not disagree with using, as a general measure of loss-of-use damages, the reasonable rental value of a comparable machine for the period of time necessary for replacement”); Gillespie v. Draughn, 54 N.C. App. 413, 417, 283 S.E.2d 548, 552 (1981) (“The measure of damages to be recovered is the cost of renting a similar vehicle during a reasonable time for repairs”); Apostle v. Prince, 158 Ga.App. 56(2), 279 S.E.2d 304 (1981) (“The plaintiff expressed his opinion as to the reasonable rental value of a comparable car. There was sufficient evidence presented to allow the jury to determine damages for loss of use”); Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 607, 160 S.E.2d 712, 718 (1968) (“Ordinarily the measure of damages for loss of use . . . is the cost of renting a similar vehicle during a reasonable period for repairs”); Nat’l Dairy Products Corp. v. Jumper, 241 Miss. 339, 344, 130 So. 2d 922, 922-24 (1961) (“In short, loss of use of a repairable vehicle is measured by the reasonable rental value of a similar unit . . . This measure of damages for loss of use has the virtue of certainty and fairness, in that there can ordinarily be determined specifically the value of the loss of use, by ascertaining the rental value of a similar vehicle”); Naughton Mulgrew Motor Car Co. v. Westchester Fish Co., 105 Misc. 595, 597, 173 N.Y.S. 437, 438 (App. Term 1918) (“The practice has obtained in these damaged vehicle cases of allowing the cost of the actual hire of another vehicle similar to that damaged”).
 

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Experience only, not legally backed... I was loaned an AWD traverse just before a snowstorm after my Chevy Cruze was totaled. In that case I don’t think they looked at all at the drive train, which has been consistent with most rentals or loaners I’ve received. The Subaru dealers loaning out Subaru’s are the exception. The number of seats and ability to get you and your people from point A to point B should be the biggest consideration.
 

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Discussion Starter · #3 ·
Experience only, not legally backed... I was loaned an AWD traverse just before a snowstorm after my Chevy Cruze was totaled. In that case I don’t think they looked at all at the drive train, which has been consistent with most rentals or loaners I’ve received. The Subaru dealers loaning out Subaru’s are the exception. The number of seats and ability to get you and your people from point A to point B should be the biggest consideration.
update: I am bound and determined having been bolstered by a early morning conversation with some attorneys. I transferred my rental reservation from Enterprise to Hertz since their fleet could guarantee an AWD vehicle. In my conversation with the AmFam supervisor she agreed that AWD was part of the consideration for a comparable given the season and location of the rental. I then talked to Hertz to detail out the reservation and learned that they only had me in for an intermediate size which according to Hertz system would not provide for an AWD. They said I needed to be authorized for a small SUV AWD. I emailed back to the supervisor I spoke with and also talked to her again. She communicated to the rental adjuster to deal with it on Monday. I now have it all in writing and have a high degree of confidence I can get this approved through the system. Rental companies need to have more AWD sedans in their fleets in regions where they are typically used. Consumers need to push back on these insurance companies for comparable features that are important. I hope to have an update for the forum on Monday. As the attorneys stated, persistence and a valid rational argument often wins the day.
 

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My rental car from Enterprise is an AWD Rogue Sport... not bad for $40 a day.

I would be careful of the tires on rental cars:
1) They are not known to rotate tires properly
2) Replace tires in pairs with tires of questionable performance.

I would feel safer using chains/cables.
 

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Discussion Starter · #5 ·
good news! I persisted with the responsible party's insurance company and went up the chain of command. They have authorized a AWD SUV for the rental. Hertz unlike Enterprise will be able to reserve a specific vehicle for that later date when I bring in my other Subaru for auto body work.
 

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My rental car from Enterprise is an AWD Rogue Sport... not bad for $40 a day.

I would be careful of the tires on rental cars:
1) They are not known to rotate tires properly
2) Replace tires in pairs with tires of questionable performance.

I would feel safer using chains/cables.
Be aware, from someone who rented an AWD Rogue (me) when my Outback was in for service, it's mostly FWD, which shows in horrible weather for those used to relying on their Subies to deal with stuff.
 

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Be aware, from someone who rented an AWD Rogue (me) when my Outback was in for service, it's mostly FWD, which shows in horrible weather for those used to relying on their Subies to deal with stuff.
Yes, it is mostly FWD, but when you start from a stop, it immediately goes to 50:50, until it gets to speed and goes back to 100% FWD.

It also has a AWD lock button, which locks the coupling at 50:50 up to 25 mph.
 

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It also has a AWD lock button, which locks the coupling at 50:50 up to 25 mph.
Yeah my wife Sorento has that ‘lock’ also. Then one day she backed too close to a ditch and got 1 rear wheel of the ground. Had to get out and push it to get it to move. Then I told her we should have driven my Subaru!
On the other hand I had to drive an awd traverse in about 6” of snow and it did very well!
 

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Yes, it is mostly FWD, but when you start from a stop, it immediately goes to 50:50, until it gets to speed and goes back to 100% FWD.

It also has a AWD lock button, which locks the coupling at 50:50 up to 25 mph.
My rental never did. It did 100:0 to 90:10. That was two years ago. I had to use the lock button to get fake not 50:50 for a few seconds before it reverted.
 

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I had a rental to fix a dent in my Ascent lift gate. I was supposed to get a Jeep Compass, which would have been an acceptable "comparable vehicle" for the 5 days I was going to have it.

As luck had it, they had an Audi Q5 available due to a cancellation and said I could have it if I wanted.

What a piece of junk that Audi was! Not a great ride, idiotic and byzantine infotainment system, and somehow I managed to get what must be the only Audi Q5 without heated seats. How does Audi even make any SUVs without heated seats? Who would be shopping for Q5 and be looking to shave that little money off?
 

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Who would be shopping for Q5 and be looking to shave that little money off?
Probably a fleet vehicle if it was a rental and sometimes those have different feature sets than the ones that you or I would consider buying.
 

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@packout, be glad you did not have to deal with a driver who had Fred Loya for their insurance company. They tell their clients to stop all communication with the other party and thus, they get out of paying a claim. What a shady business practice.

The other insurance company won't have to pay the claim, if the party at fault never contacts them. Your issues would have been far greater than what type of rental vehicle you would get.
 

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Discussion Starter · #15 ·
A driver that is hit by another driver need not contact the other party's insurance to file a claim (this is not a requirement). You only need to sue the driver in court. That will bring the other driver into court with them represented by their insurance company. You can file a claim without their insurance company's major cooperation. You simply notify them of the accident in writing and maintain the documentation of that notice. They are required to respond promptly.

One time my wife's vehicle was hit and we filed a claim with the at fault insurance company. I did not like their response so I tried communicating with the at fault driver. She was a much older senior so her son got involved but did not cooperate very well so I sued her in court. They were agast but came in with their insurance rep and of course I was awarded the extra dollars that I wanted including the dollars needed to file the suit.
 

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Probably a fleet vehicle if it was a rental and sometimes those have different feature sets than the ones that you or I would consider buying.
I think because I wound up in the "luxury" model I got a call from the rental company asking how it was working out and I griped about this. When I turned the vehicle in, the guy told me there were only 2 Q5s in their national inventory without heated seats.

I suspect that this car was purpose built as cheaply as possible for some kind of fleet sale, although I think it's weird that Audi would even bother with the assembly variation required to produce models without heated seats. I'd guess the marginal costs of heated vs. non-heated seats would be a wash with just making them all heated, given their "luxury" status and the low likelihood that there's much of a buyer base for Audis missing basic luxury features.
 

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Probably a fleet vehicle if it was a rental and sometimes those have different feature sets than the ones that you or I would consider buying.
As it happened, I wound up talking to the manager of the Enterprise location that provided the car and he searched the national database and said this was one of only 2 Q5s in the national inventory without heated seats, the rest had them. So fleet vehicle, or just one that got built at the end of a production run with whatever parts were available?
 
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