The ugly tale of my toasted clutch (long - get a beverage)
11-20-2008, 01:46 PM
#32
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You may want to read the original post... they admitted a couple of things
when he picked up the car. Hearsay you say? yes, but surely you know the declaration against interest exception....
Circumstantial evidence? Well, the OP will say the car was running fine when he took it in, upon pickup there was a burning clutch smell, employees at parking garage said [insert statements here], Audi dealer diagnosed [insert diagnosis here], car only had [insert mileage here], it will cost [inset cost here] to repair.
Given the statements made by the garage employees when he picked it up the car, I think he has a pretty good case. But hey, what do I know??
Circumstantial evidence? Well, the OP will say the car was running fine when he took it in, upon pickup there was a burning clutch smell, employees at parking garage said [insert statements here], Audi dealer diagnosed [insert diagnosis here], car only had [insert mileage here], it will cost [inset cost here] to repair.
Given the statements made by the garage employees when he picked it up the car, I think he has a pretty good case. But hey, what do I know??
11-20-2008, 02:01 PM
#33
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I would disagree somewhat....
I am not a lawyer, no--but I have a bachelor's in Criminal Justice Administration and am midstride into my Master's in Criminology with a minor and emphasis in Constitutional Law. I know the law fairly well.
I am not a legal 'expert', no--but I can tell you empirically that I myself have seen numerous cases in Washington State (my home--just not right now) wherein the complainant WAS, in fact, awarded due compensation for attorney's fees in addition to punitive damages and 'OAG's'--'other associated grievances'. It is true that some lawyers will not take on cases due to the monetary baseline that they operate under--it is case by case, and it is true that it has to be worth their while, quite frankly.
Guess it's not really worth getting into a 'tit-for-tat' or 'who's who' on the legal side of the house here on this forum, granted-----but I submit that you have nothing to lose but a bit of time by doing your research---talk to the right people, get some answers, do some legwork on your own.
Problem with most small claims courts is they have no 'teeth'---they do not have the power to 'enforce' award of damages or compensation; this is because in most jurisdictions, small claims is a civil court, not a criminal court---but the burden of proof is a bit easier. About the best you'll end up with, in many cases, is a judgment against them--which some companies will satisfy, and some will not. Only good part is in Washington if you have a judgment against your business, sometimes your business license will not be renewed the next year until the judgment is cleared--meanign they finally have to 'pay up' to clear the judgment.
maybe we're nickle-and-diming you to death here---microanalyzing ourselves into a corner which we ourselves cannot get out of?
Food for thought....
I am not a legal 'expert', no--but I can tell you empirically that I myself have seen numerous cases in Washington State (my home--just not right now) wherein the complainant WAS, in fact, awarded due compensation for attorney's fees in addition to punitive damages and 'OAG's'--'other associated grievances'. It is true that some lawyers will not take on cases due to the monetary baseline that they operate under--it is case by case, and it is true that it has to be worth their while, quite frankly.
Guess it's not really worth getting into a 'tit-for-tat' or 'who's who' on the legal side of the house here on this forum, granted-----but I submit that you have nothing to lose but a bit of time by doing your research---talk to the right people, get some answers, do some legwork on your own.
Problem with most small claims courts is they have no 'teeth'---they do not have the power to 'enforce' award of damages or compensation; this is because in most jurisdictions, small claims is a civil court, not a criminal court---but the burden of proof is a bit easier. About the best you'll end up with, in many cases, is a judgment against them--which some companies will satisfy, and some will not. Only good part is in Washington if you have a judgment against your business, sometimes your business license will not be renewed the next year until the judgment is cleared--meanign they finally have to 'pay up' to clear the judgment.
maybe we're nickle-and-diming you to death here---microanalyzing ourselves into a corner which we ourselves cannot get out of?
Food for thought....
11-20-2008, 03:23 PM
#34
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Huh?
Not sure what you were trying to say, but I did notice one error:
"Problem with most small claims courts is they have no 'teeth'---they do not have the power to 'enforce' award of damages or compensation"
Incorrect. A judgment in small claims court is no different than a judgment in any other civil court. There is plenty of "teeth" to it and there are many avenues to use in collecting your judgment. This is no different than a civil case heard in front of the highest courts in the land, including the Supreme Court.
"Problem with most small claims courts is they have no 'teeth'---they do not have the power to 'enforce' award of damages or compensation"
Incorrect. A judgment in small claims court is no different than a judgment in any other civil court. There is plenty of "teeth" to it and there are many avenues to use in collecting your judgment. This is no different than a civil case heard in front of the highest courts in the land, including the Supreme Court.
11-20-2008, 03:39 PM
#35
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In PA you can have an attorney in small claims court.
Apparently the rules vary from state to state. I have personally gone against the insurance company in small claims court and won . In fact they were begging with me to settle. But they will hold out until the last minute especially when they know they are going to lose. Small claims courts seem to side with the "little guy" when up against the insurance companies when there is a legitimate claim. That info was given to me by my insurance agent.
11-20-2008, 06:55 PM
#36
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The burning smell happens when he clutch goes, so I didn't make much of it.
Clutches are like brakes - they are wear items. It would take some pretty serious abuse to have a single incident fry the clutch unless it was about ready to go. That smell just didn't mean anything to me one way or the other having lived through the failure myself.
On the other hand, a night court judge might not know that, and might read something into the burning smell and the other facts. Risking the small claims filing fee and an evening's worth of time in court is not much of a risk, but I would not invest much in atty fees, and also would not get my hopes up.
In Georgia a judgment in small claims court can be appealed for a de novo jury trial in state court, so it is a dicey proposition at best. I am sure other states differ.
Yeah I read the post - just offering another point of view for the OP with as soft a touch as I can. Like anything, if you keep your expectations reasonable, you will not be disappointed, and may b pleasantly surprised. I wish the OP all the best whatever happens, and whatever happens.
On the other hand, a night court judge might not know that, and might read something into the burning smell and the other facts. Risking the small claims filing fee and an evening's worth of time in court is not much of a risk, but I would not invest much in atty fees, and also would not get my hopes up.
In Georgia a judgment in small claims court can be appealed for a de novo jury trial in state court, so it is a dicey proposition at best. I am sure other states differ.
Yeah I read the post - just offering another point of view for the OP with as soft a touch as I can. Like anything, if you keep your expectations reasonable, you will not be disappointed, and may b pleasantly surprised. I wish the OP all the best whatever happens, and whatever happens.
11-20-2008, 07:02 PM
#37
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One more suggestion. . .
If you do decide to go to court, you won't be able to repeat what the service rep told you (hearsay if he is not there). If you want to establish that the clutch had been recently abused, you will need to get the service rep or another expert familiar with the car to come testify. You may be able to subpoena, him but you probably also need to figure out a legal way to thank him after the fact for his time. I would get his agreement in advance and then use the subpoena to formalize it.
And again, when my clutch failed I had driven hard in the mountains for 20 minutes the previous weekend, and was on my second track session of the first day of an HPDE weekend, so no doubt mine was being subjected to very high levels of heat and stress. Unlike you, I guess I do not baby my car.
And again, when my clutch failed I had driven hard in the mountains for 20 minutes the previous weekend, and was on my second track session of the first day of an HPDE weekend, so no doubt mine was being subjected to very high levels of heat and stress. Unlike you, I guess I do not baby my car.
11-20-2008, 07:18 PM
#38
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Uhhh...I am a lawyer... you are likely out of luck
This IS NOT LEGAL ADVICE (haha - disclaimer), but as a lawyer myself I can tell you that you will AT BEST find an attorney that will write a letter to the parking garage owner and their insurer. The letter will have three possible outcomes:
1. No response
2. Same response (i.e. f**k you)
3. Offer to settle for half the damage
Odds are Nos. 1 or 2. NO lawyer will touch that case if it is only 4-5k in damages. Nobody will do it on a contingency and most lawyers are going to charge you $200-450 per hour and probably can't even appear in a small clams action in Massachusetts. They can "ghost" the case for you in small claims where they advise you but you have to make it happen.
Small claims it is...but proving your case will require testimony of the dealer (as to inspection three weeks ago) and an expert that was able to look at the car in a VERY short timeframe after you picked it up. Burden of proof in most civil cases (including small claims) is preponderance of the evidence, but even then your battle is uphill. However, you do have some sweet declarations against interest by the garage employees (which they will most certainly deny at court....)
Real world. Sorry.
1. No response
2. Same response (i.e. f**k you)
3. Offer to settle for half the damage
Odds are Nos. 1 or 2. NO lawyer will touch that case if it is only 4-5k in damages. Nobody will do it on a contingency and most lawyers are going to charge you $200-450 per hour and probably can't even appear in a small clams action in Massachusetts. They can "ghost" the case for you in small claims where they advise you but you have to make it happen.
Small claims it is...but proving your case will require testimony of the dealer (as to inspection three weeks ago) and an expert that was able to look at the car in a VERY short timeframe after you picked it up. Burden of proof in most civil cases (including small claims) is preponderance of the evidence, but even then your battle is uphill. However, you do have some sweet declarations against interest by the garage employees (which they will most certainly deny at court....)
Real world. Sorry.
11-20-2008, 08:43 PM
#39
There are a few routes to go with this.
One, file with your own carrier. This should be done anyway to protect your rights under your policy. If this was done in an identifiable act i would say it constitutes a valid claim. Let them subrogate it against the garage's carrier.
Two, file a small claims action and get an attorney to go on a per appearance basis. Most small firms will go for say $500 (figuring its 1.5-2.0 hours of time in SC court). I don't know about Mass but in NY you can certainly have a lawyer.
Three, if money is no object, and your carrier won't pay either file action against the garage AND a declaratory judgment action against your carrier to enforce judgment. Have your attorney consolidate the cases. This places the insurance carrier as a party in the caption...the one thing any carrier does not want is knowledge of potential insurance. This generally gets the ball moving.
Two, file a small claims action and get an attorney to go on a per appearance basis. Most small firms will go for say $500 (figuring its 1.5-2.0 hours of time in SC court). I don't know about Mass but in NY you can certainly have a lawyer.
Three, if money is no object, and your carrier won't pay either file action against the garage AND a declaratory judgment action against your carrier to enforce judgment. Have your attorney consolidate the cases. This places the insurance carrier as a party in the caption...the one thing any carrier does not want is knowledge of potential insurance. This generally gets the ball moving.