“I was in an accident and my car was damaged and now the insurance company wants to settle the property damage but I don’t know what my car is worth when settling with the insurance company after the accident.  What should I do?”

We get asked this question quite a lot by our clients and here is what we tell them.  Our firm does not charge an hourly fee; rather, we only get our attorney fee if the client gets paid.  Since our firm gets paid a percentage of any verdict or settlement we obtain for our client, we do not want to take a percentage of the money the client will be getting from their property damage settlement since they will need to repair or replace their car or other property.  So if our firm takes on a personal injury case involving a car accident, we provide our clients with the following information so that they can settle their own car/property claim (while saving an attorney fee!) even though our firm is still representing them in their serious injury claim where our expertise and guidance can enhance their financial recovery (which is why insurance companies try to settle cases “on the cheap” before you realize you should contact a knowledgeable and experienced personal injury attorney before even talking to the insurance company).  As a result, we teach our clients what to say—and more importantly what not to say—when talking to the insurance company to settle their car or other property claim, and then we instruct our personal injury clients to do the following.

     1.     If the Vehicle is a Total  Loss, (“totaled”) or the cost to repair is more than the market value of the vehicle right before the accident, one’s damages are the market value of the vehicle immediately before the accident plus the reasonable cost of rental for a reasonable period of time to find a replacement vehicle.

For example, let’s say the market value of Bob’s car right before an accident is $15,000.00, and let’s say it takes $17,000.00 to repair the car.   Bob is entitled to recover the $15,000.00 (the pre-accident market value) plus the reasonable cost to rent a car for a  reasonable period of time while searching for a replacement vehicle. (a reasonable period of time for car rental varies by the circumstances but the Iowa Supreme Court in Papenheim v. Lovell, 530 N.W.2d 668 (1995) (case reprinted below) ruled that a reasonable period of car rental was three weeks under the circumstances of that case).

2.     If the Vehicle can be  repaired to pre-accident condition—and if the cost to  repair is not greater than the pre-accident value minus the after-accident value—one’s damages are the cost to fix the vehicle plus the reasonable cost to rent a  vehicle for a reasonable period of time while the repairs are being made (a  reasonable period of time or car rental varies by the circumstances but the  Iowa Supreme Court in Papenheim v. Lovell,  530 N.W.2d 668 (1995) (case reprinted below) ruled that a reasonable period of  car rental was three weeks under the circumstances of that case).

For  example, if Bob’s car is worth $15,000.00 before the accident and it will take $2,000.00 to fix Bob’s car, and that after such repairs, Bob’s car will still be worth $15,000.00, then under these circumstances, Bob should recover the  cost to fix the car plus the reasonable cost of a rental for a reasonable  amount of time while his car is being fixed.

3.     If fixing the vehicle  cannot put it back in pre-accident condition and value,  one’s damages are the cost to fix the vehicle, plus the depreciation in the  vehicle’s value due to it having been in a significant accident, plus the  reasonable value for a rental car for a reasonable period of time while vehicle  is being repaired or to find a replacement vehicle.   Depreciation damages under these circumstances seem particularly fair in  an age where vehicle accident histories can be easily found via CarFax or some  other type of service—not to mention that some laws require a seller to  complete and sign damage disclosure statements when selling a car involving damages above a certain value. (In Papenheim  v. Lovell, 530 N.W.2d 668 (1995), the Iowa Supreme Court ruled that a reasonable period of car rental was three weeks under the circumstances  of that case) (Case reprinted below).

For  example, let’s say Bob’s car is worth $22,000.00 before the accident and that  it will take $4,500.00 to fix Bob’s car, but after the car is fixed, it will  have a market value of only $12,000.00.   Under these circumstances, Bob should recover the cost to fix his car
plus $10,000.00 ($22,000.00 pre accident car value minus the $12,000.00 post-accident
value of the car after repairs have been made=$10,000.00) plus a reasonable  amount for car rental for a reasonable period of time while the car is being  repaired.

The above information is based upon the following  three cases which are up-to-date good law as of January 4, 2014: Long v. McAllister, 319 N.W.2d 256 (Iowa  1982), Papenheim v. Lovell, 530  N.W.2d 668 (1995), and Hawkeye Motors,  Inc. v. McDowell, 541 N.W.2d 914 (IA Ct. App 1995); these full cases may be  found below.  See also Iowa Uniform Civil Jury Instructions 200.2, 200.3, 200.4, and 200.5 below.

Remember, statutes (laws) and cases (and jury instructions)  interpreting those laws are constantly changing so make sure you obtain  up-to-date statutes and cases before relying upon anything herein.

You should also obtain the advice of an experienced and  knowledgeable personal injury attorney before relying upon any of the information  contained in this article since the advice given here is NOT applicable to every case and fact pattern.

Additional things to keep in mind when working  through the above analysis:

A.     Well  known vehicle websites (Kelly Blue Book, Edmunds, etc.) can help you calculate  the pre-accident value for your car; typically the websites will walk you
through the process of checking boxes to reflect your vehicle’s options.  Car dealers may also help you establish the  value of your pre-accident vehicle with a letter or affidavit because it builds  good will—you just might go to their dealership the next time you want to buy a  vehicle.

B.     Don’t  forget add-ons to your vehicle value:  If  you have a really nice upgraded stereo or running boards or custom wheels or other  customization or add-ons that are not reflected in the website valuation, make  sure you bring such items to the attention of the insurance company; again, a  car dealer’s letter or affidavit may help you establish the pre-accident value  of your vehicle with such add-ons.

C.     If  your vehicle is a collectible, antique, or has some other value typically not
considered by website valuations, get a letter, appraisal, affidavit, or some  other documentation from a car dealer or car appraiser to give to the insurance  company.

D.     Ask  a car dealer or two that you trust to give you an opinion as to whether the
market value of your car will be lower after the accident even though you had  it repaired, and if they think your car will depreciate in value given the  extensiveness of the damage, make sure you get the car dealer to put that in  writing so that you can obtain damages for depreciation pursuant to category #3

E.     If  your car is repairable, remember it is your right to choose original equipment manufacturer (“OEM”) parts as it is also your right to choose which repair shop  you want to fix your vehicle.  Insurance  companies have paid dearly in class action cases for misleading vehicle owners  into thinking they must settle for used parts or after-market parts made by  companies other than the original manufacturer of your vehicle.

F.     Ask  family, friends, and people you know who they would trust repair their car; remember, it’s your right to select the repair shop.

G.     Remember  to get compensation for other property damage items.  For example, if you had a trunk full of  fishing gear or a car of groceries that were damaged, etc., take photos of the  damaged items and provided the insurance company with receipts or other types of  evidence proving the valuation of such damaged items.

H.     Remember  to get a couple of estimates from a couple different body shops.

I.     Remember  that serious damage can be done to your car even if it does not appear so; for  example, if a “minor” fender bender hits a major structural part of your vehicle  or, for example, the frame of your vehicle, your vehicle can be severely  damaged even though the damage looks minimal; a body shop should be willing to  put your vehicle on a hoist and do a thorough inspection to rule out structural,  frame, or other serious damage.  Similarly, modern vehicles are designed to withstand a considerable jolt  to its bumpers without causing much visible damage on the outside when in  reality, bumper shock absorbers (designed to absorb a hit) may be broken/damaged  which means even a minor future hit to your bumper can cause severe damage to  yourself or your vehicle.  These examples  are merely for illustration purposes and is not meant to be an exhaustive list of things on a vehicle which may be damaged despite appearances following an  accident.  Again, ask a qualified,  experienced, knowledgeable, and ethical repair shop to put your vehicle on a  hoist to rule out more serious damage to your vehicle.

J.     BEFORE talking to the insurance company, first click to see our free Guide entitled: “10 Costly Mistakes to Avoid After an Accident.”

K.     When  settling your vehicle or property damage, make  sure you are not signing away your rights to make a claim for personal injury  or other damages.

L.      Realize  the information contained in the Article is NOT applicable to every case as you should first obtain the advice of an experienced and knowledgeable personal  injury attorney before relying upon any of the information contained in this article.

     M.     Make sure a knowledgeable and experienced serious injury attorney represents you with respect to any serious  person injury/bodily injury claims you may have as such serious injury claims  are not for the “do-it-yourselfer” or attorneys who only dabble in personal  injury cases.

If you or a loved one has suffered a serious personal injury, your world probably feels upside down right now as you worry about, among other things: how to keep track of medical bills and who should pay for those medical bills, how to pay your mortgage or rent, whether talking to the insurance companies does more harm than good, and whether you are taking all the right steps to adequately, properly, and legally protect yourself and your loved ones at this very difficult time.

You don’t have to face these issues and uncertainty on your own. Let Sam Sheronick Law Firm, P.C. take care of the worries and hassles for you so that you or your loved one can concentrate on recovering from serious injuries. Besides, insurance companies know that injured persons get more compensation when represented by an attorney than when they try to handle their cases themselves; not too surprisingly, this is why insurance companies try to persuade injured persons not to get an attorney.

At Sam Sheronick Law Firm, P.C., we take the time to learn how our clients and their loved ones feel and how their lives have changed as a result of a serious accident so that we can enable jurors to feel what it is like to be in our clients hide. We cannot do this properly if we represent too many clients at one time. We strive to always represent our clients with compassion, understanding, and passion the same way we would want to be treated because in the final analysis, you only get one chance to obtain fair and proper compensation for your serious injuries and damages.

While your well-being comes first, your rights need to be protected while you are recovering from your serious injuries. For over 20 years, Sam Sheronick Law Firm, P.C. has represented victims who are seriously injured as a result of a catastrophic accident.

Please remember that the sooner you involve Sam Sheronick Law Firm, P.C. after an accident, the better we will be able to: protect your rights and prevent others from harming you and your case, preserve evidence, contact witnesses, and timely address deadlines and other important issues.

At Sam Sheronick Law Firm, P.C., there is no fee for an initial consultation and if we decide to take your case, you will not be charged an attorney fee unless you win/settle your case. We can also come to you if you are unable to come to us. For a free consultation, please contact us at: (319) 366-8193 or toll free: 1-888-4SamLaw (1-888-472-6529).

If you or a loved one has been injured as a result of a serious accident, we can come to you if you cannot come to us; please contact the Cedar Rapids, iowa serious accident attorney at Sam Sheronick Law Firm, P.C., at 1-888-4SAMLAW or click this link: https://samlawpc.com

Disclaimer: Please realize the advice given herein is for informational purposes only and may not apply to a given situation as you should consult and experienced and knowledgeable personal injury attorney as soon as possible to protect your rights to see whether this information applies to your given situation.

Disclaimer: The information contained here and throughout our website, and in our printed or other materials, are for general informational purposes only as this information should not be considered to be legal advice concerning your specific case. You should consult an experienced and knowledgeable attorney in this area of law to determine whether the information given in our videos, blog, website, and other materials applies to your specific case as the failure to do so could do significant harm to your case. Please realize there are many more things to keep in mind when dealing with this issue than those listed here, but we have listed some of the more common things we’ve seen here. Our firm does not represent you unless or until we enter into a written fee agreement signed by both you and our firm. Click here for additional disclaimer information.


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(Current as of January 4, 2014;

Caution: statutes and case law are always evolving as
new cases may be decided thereafter, so be sure to consult and experienced and  knowledgeable personal injury attorney before relying upon any of the information  contained herein)

319  N.W.2d 256

Arthur  LONG, Appellant,

                          v.     Dan McALLISTER; McAllister Seed Company, Inc., An Iowa Corporation; and I.M.T.  Insurance Company, An Iowa Corporation, Appellees.

No.  66642.

Court of Iowa.

May  19, 1982.

 Page 257


Edwin F. Kelly and Barry D.
Farmer of Kelly & Morrissey, Fairfield, for appellant.

Craig D. Warner of Pryor,
Riley, Jones & Aspelmeir, Burlington, for appellees.

Considered by REYNOLDSON, C.

McCORMICK, Justice.

This tort action arose from  a dispute concerning adjustment of motor vehicle property damage under the  liability coverage of the tortfeasor’s insurance policy. In entering summary  judgment for defendants, the trial court limited plaintiff’s recovery to the
reasonable value of his automobile at the time it was damaged, with interest  from the date of judgment. The questions here are whether the court erred in  refusing to award prejudgment interest, in denying the right to damages for  loss of use, and in dismissing plaintiff’s claim against the insurer for bad  faith in adjusting the loss. We find that plaintiff was entitled to prejudgment  interest and an opportunity to prove loss of use damages, but we refuse to  recognize a bad faith claim of the nature alleged. Therefore we affirm in part  and reverse and remand in part.

Plaintiff Arthur Long’s  automobile was damaged on October 19, 1978, when a farm wagon of defendants Dan  McAllister and McAllister Seed Company, Inc., rolled down an incline and struck  it. These defendants had property damage liability insurance covering the loss with defendant I.M.T. Insurance Company and another insurer. Although I.M.T.  obtained repair estimates from plaintiff shortly after the occurrence,  thirty-three days passed before the insurers agreed between themselves on how  the loss would be shared. Eight days later I.M.T. offered plaintiff $1250 to  settle the loss in behalf of McAllister and the seed company. No dispute  existed concerning liability or the fact the vehicle was damaged beyond repair.

After first agreeing to the  settlement, plaintiff later in the same day rejected it as inadequate.   Eventually plaintiff employed an attorney who demanded $1500 in settlement.   I.M.T. raised its offer to $1300 but received no response. Plaintiff later
brought the present action in two counts.

In the first count, he  sought recovery against McAllister and the seed company on negligence grounds.   He alleged he was entitled to the market value of the vehicle of $1300 with  interest at seven percent from the date of the accident and at the maximum
legal rate from the date the petition was filed. He also alleged he was  required

Page 258

to rent substitute transportation at  a cost of $500 “during the time he was requested to await adjustment”  of the loss, and he asked judgment for this amount as well.

In the second count of the  petition, plaintiff alleged I.M.T. had a fiduciary responsibility to its  insureds and to plaintiff to adjust the loss promptly and in good faith. He  alleged that I.M.T. breached this duty by failing to pay the part of his claim  not in dispute, asked for judgment for that amount, with interest, and asked  for $10,000 in punitive damages.

In their answer, defendants  admitted all of the essential allegations of count I except the allegations  concerning loss of use and rental of substitute transportation, which they
denied. Among the allegations admitted was paragraph 7 of the petition which

Because of the

[occurrence]  herein, Art Long’s vehicle was made inoperable and the cost of repairing Art  Long’s vehicle exceeded its market value of $1300.00 and Art Long is entitled  to judgment for its October 17, 1978 value of $1300.00 with interest at the  rate of seven percent from October 19, 1978 through date of filing this  Petition and thereafter at the maximum legal rate, allowed for interest.

In addition, defendants  asserted an affirmative defense, alleging that the extent of their obligation  was to pay plaintiff $1300 with interest from the date of the accident.

Subsequently defendants  offered to confess judgment for $1300 with interest at seven percent from the  date of the accident to December 31, 1980, and at ten percent thereafter.  Defendants also moved for adjudication of law points, alleging unavailability  of loss of use damages when a motor vehicle has been totally destroyed.   Plaintiff did not accept the confession of judgment, and the trial court ruled  in defendants’ favor on the motion to adjudicate law points.

Defendants next filed a  motion for summary judgment, alleging that McAllister and the seed company owed  plaintiff only $1300 plus interest at ten percent per annum from the date of  filing the petition under count I. That amount was deposited with the clerk.   I.M.T. asked for judgment on count II of the petition on the ground it failed  to state a claim on which relief could be granted. The trial court subsequently  sustained the motion and entered judgment for plaintiff on count I for the  $1314.25 deposited with the clerk, and for I.M.T. on count II. As authorized by  Iowa R.Civ.P. 237(c), plaintiff filed a rule 179(b) motion challenging the  court’s failure to award prejudgment interest on count I. The court refused to  change the judgment, and this appeal followed.

I. Prejudgment interest. The question of plaintiff’s entitlement to prejudgment interest on the amount  representing the reasonable market value of his automobile at the time of the accident is controlled by the admission in defendants’ answer. Plaintiff  alleged and defendants admitted plaintiff’s entitlement to interest on the  $1300 award at the rate of seven percent from the date of the accident and at  the maximum legal rate from the date of filing of the petition. When a fact  alleged in a pleading is admitted, the fact is no longer an issue. Smith v.  Bitter, 319 N.W.2d 196, 199 (Iowa 1982) (filed separately this date); Cowles  Communications, Inc. v. Board of Review of Polk County, 266 N.W.2d 626, 631) Iowa 1978); Welter v. Heer, 181 N.W.2d 134, 136 (Iowa 1970). Even though  defendants took a different position in resisting plaintiff’s rule 179(b)  motion, they did not seek to amend their answer.

We have no occasion to  decide whether plaintiff would have been entitled to prejudgment interest in  any event under the principle in Vorthman v. Keith E. Myers Enterprises, 296 N.W.2d 772, 778 (Iowa 1980). Nor do we have occasion to decide the effect of  section 535.3, The Code. Because the entitlement to interest was admitted, the  court erred in refusing to award plaintiff prejudgment interest on the terms  alleged.

II. Loss of use damages. In  denying damages for loss of use of the destroyed

Page 259

automobile, the trial court followed  existing precedent. See, e.g., Aetna Casualty and Surety Co. v. Insurance  Department of Iowa, 299 N.W.2d 484, 485 (Iowa 1980):

(1) When the automobile is  totally destroyed, the measure of damages is its reasonable market value  immediately before its destruction.

(2) Where the injury to the  car can be repaired, so that, when repaired, it will be in as good condition as  it was in before the injury, then the measure of damages is the reasonable  value of the use of the car while being repaired, with ordinary diligence, not
exceeding the value of the car before the injury.

(3) When the car cannot, by  repair, be placed in as good condition as it was in before the injury, then the  measure of damages is the difference between its reasonable market value immediately before and immediately after the accident.

These rules were first  distilled in Langham v. Chicago, R.I. & P. Ry., 201 Iowa 897, 901, 208 N.W.  356, 358 (1925). The court expressly held that loss of use damages are not
allowed under the first and third rules in Kohl v. Arp, 236 Iowa 31, 33-34, 17  N.W.2d 824, 826 (1945).

The rule denying loss of use  damages in these situations has not been specifically discussed in the cases.   Because the rule has been challenged in the present case, we must determine its  continued viability. We do so against the background “that the principle underlying allowance of damages is that of compensation, the ultimate purpose  being to place the injured party in as favorable a position as though no wrong  had been committed.” Dealers Hobby, Inc. v. Mary Ann Linn Realty Co., 255  N.W.2d 131, 134 (Iowa 1977).

Inherent in our present rules governing damages to motor vehicles is the concept that the market value  of the vehicle is the ceiling on recovery whether the vehicle can be repaired or must be replaced. In some cases the owner will be fully compensated despite  that limitation. Even when the vehicle is destroyed and delay occurs before  compensation is received, interest on the market value of the vehicle from the  date of the accident theoretically pays the owner for the delay. The same is  true when the vehicle is not destroyed but cannot be restored to its prior  condition and the owner receives interest on its depreciated value. Moreover,  when the vehicle can be restored by repair to its prior condition, the owner is  not only entitled to compensation for the reasonable cost of repair but for  reasonable loss of use damages. Although market value is nevertheless a ceiling on recovery even in this situation, full compensation is possible when the  cumulated damages do not exceed the limitation.

In other cases, however, the  present rules plainly do not permit full compensation. Loss of use damages will  be incurred as readily when a vehicle is totally destroyed or when it cannot be  restored by repair to its prior condition as when the vehicle can be restored
by repair. Just as loss of use damages are necessary for full compensation when  the vehicle can be restored to its prior condition, they are warranted when the  vehicle is destroyed or cannot be so restored. No logical basis exists for  cutting them off when the total reaches the vehicle’s market value before the  injury.

The origin of the market value  limitation lies in history rather than logic. Damages for destruction of  chattels were based on analogy to conversion. The reasonable market value of the chattel was viewed as adequate compensation under this concept in the common law action of trover. The rigidity of the analogy obscured any  distinction between destruction of chattels generally and destruction of  chattels of such utility that the owners incurred loss of use expense. Perhaps  this distinction became important only with the advent of the motor vehicle and  the practice of motor vehicle leasing and rental.

The historical basis and  usual arguments for denying loss of use damages are addressed in D. Dobbs,  Remedies § 5.11 at 384-85 (1973) (footnotes omitted):

Loss of use claims are most  commonly asserted for a period of time when the chattel is being repaired, but  sometimes

Page 260

the chattel is destroyed and is not  repairable. In such cases, loss of use claims are sometimes asserted for the  period required to replace the chattel. A number of courts have refused to  permit loss of use awards in cases of total destruction, and have limited
recovery in such cases to the value of the article. Destruction, of course, was  closely analogous to a conversion, where the measure of damages was the value  of the chattel at the time of conversion, and it was natural enough to import  the conversion measure into the destruction situation. There was probably some  thought that the market value of the chattel–which reflected the right to use  it gainfully–plus interest for the time the owner was deprived of it, actually  furnished full compensation. Another argument made against granting loss of use  where there was total destruction sounds rather strange in modern ears. The  authors of Sedgwick on Damages argued that when compensation for the whole value of the property destroyed is sought, “it is upon the theory that the  plaintiff’s entire interest in the property ceased at the time of the injury,  and was replaced by a right to have the value of the property in money. Since  therefore, the plaintiff no longer has title to the property he can no longer  claim that he might make a future gain from it…..” Such an argument  probably would not be accepted, or even thought of, today. It is a conceptual argument  that does not interest itself in whether the owner has actually lost something of value beyond the market value of his property; it interests itself only in a  legal concept–passage of title–that is not a part of the real world of facts  and has no significant relation to important facts of actual loss. A third  argument against granting loss of use recovery where a chattel is totally  destroyed is that to grant such recoveries opens the door to speculation. This  argument, if acceptable, would seem to apply equally to any loss of use claim,  whether there was destruction or merely damage. But the argument does not seem acceptable, because there is no essential reason why loss of use claims must be speculative. There is nothing speculative about the cost of a rental car for a  specified time while the damaged vehicle is being replaced. If loss of use  leads also to loss of profits, they are speculative as much or as little as  other claims of lost profits and the question of speculation becomes in the end  a question whether the evidence of loss is sufficient in each case.

The more recent cases that  have given serious consideration to the rule limiting recovery in cases of  destruction to the value of the chattel have rejected the rule, and have  instead allowed loss of use claims in destruction cases just as in repair  cases. But of course the relevant period of time in destruction cases is only  the time reasonably required to obtain a replacement.

A noticeable trend toward  allowing loss of use damages in destruction cases has emerged since World War  II. See Annot., Recovery for Loss of Use of Motor Vehicle Damaged or Destroyed,  18 A.L.R.3d 497, 519 n.12 (1968).

The fallacy in the market  value ceiling upon recovery in a destruction case was pinpointed in Bartlett v.  Garrett, 130 N.J.Super. 193, 196, 325 A.2d 866, 867 (1974):

When an automobile is  damaged through the negligence of another, temporary loss of the use of such  vehicle pending repair or replacement is a reasonably foreseeable consequence of the defendant’s tortious conduct. Compensation for the temporary loss of use  is directed at plaintiff’s economic loss, the amount of money plaintiff had to  pay for rental of a car. This is an injury different in kind from property damage,  the amount of money necessary to repair or replace the damaged vehicle. A  plaintiff in a total destruction case deprived of his reasonable loss-of-use  expenses has simply not been made whole. (emphasis in original).

The same reasoning is  applicable in a repair situation. See Kopischke v. Chicago, St. P., M. & O.  Ry., 230 Minn. 23, 31-32, 40 N.W.2d 834, 839 (1950).

Page 261

Loss of use damages are now  permitted under various rules even in destruction cases in a growing number of  other jurisdictions. See, e.g., Dennis v. Ford Motor Co., 332 F.Supp. 901  (D.C.Pa.1971), aff’d, 471 F.2d 733 (3d Cir. 1973) (applying Pennsylvania law);  Bettis v. Roache, 296 F.Supp. 947 (D.C.Canal Zone 1969); Buchanan v. Leonard,  127 F.Supp. 120 (D.C.Col.1954) (applying Colorado law); Stevens v.  Mid-Continent Investment Co. Inc., 257 Ark. 439, 517 S.W.2d 208 (1974);  Reynolds v. Bank of America National Trust & Savings Assn., 53 Cal.2d 49,  345 P.2d 926 (1959); Gamble v. Smith, 386 A.2d 692 (D.C.App.1978); Wajay Bakery,  Inc. v. Carolina Freight Carriers Corp., 177 So.2d 544 (Fla.App.1965); New York  Central Railroad Company v. Churchill, 140 Ind.App. 426, 218 N.E.2d 372 (1966);  Peterson v. Bachar, 193 Kan. 161, 392 P.2d 853 (1964); Daniel v. Kerby, 420  S.W.2d 393 (Ky.1967); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App.1977), cert. denied, 354 So.2d 1050 (La.1978); Weishaar v. Canestrale,  241 Md. 676, 217 A.2d 525 (1966); Wenz v. Leon, 90 Misc.2d 85, 393 N.Y.S.2d 309  (1977); Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 160 S.E.2d 712  (1968); Park v. Moorman Mfg. Co., 121 Utah 339, 241 P.2d 914 (1952); Nashban  Barrel & Container Co. v. G. G. Parsons Trucking Co., 49 Wis.2d 591, 182  N.W.2d 448 (1971). This view is also reflected in the Restatement. See  Restatement (Second) of Torts § 927 (1979).

We believe our motor vehicle  damage rules should be modified to permit full compensation including loss of  use damages. The new rules shall apply to this case, any pending case in which  error has been preserved on the issue, and all cases tried after the date of  filing this opinion. As modified, the rules are as follows:

(1) When the motor vehicle  is totally destroyed or the reasonable cost of repair exceeds the difference in  reasonable market value before and after the injury, the measure of damages is  the lost market value plus the reasonable value of the use of the vehicle for
the time reasonably required to obtain a replacement.

(2) When the injury to the  motor vehicle can be repaired so that, when repaired, it will be in as good  condition as it was in before the injury, and the cost of repair does not  exceed the difference in market value of the vehicle before and after the  injury, then the measure of damages is the reasonable cost of repair plus the  reasonable value of the use of the vehicle for the time reasonably required to  complete its repair.

(3) When the motor vehicle  cannot by repair be placed in as good condition as it was in before the injury,  then the measure of damages is the difference between its reasonable market  value before and after the injury, plus the reasonable value of the use of the vehicle for the time reasonably required to repair or replace it.

In the present case,  plaintiff alleged loss of use damages but did not get an opportunity to prove  them because of the adjudication of law points denying their availability. We  reverse the adjudication and order that plaintiff be accorded a trial on the  issue upon remand.

III. The bad faith claim.
Plaintiff asks us to recognize a new tort that would permit a third party to  recover against an insurer for the insurer’s bad faith toward the third party  in failing to settle a liability claim against the insured. This situation is  to be distinguished from third party excess judgment cases and first party  actions. In each of those situations the relevant duty of good faith and fair  dealing arises from the insurance contract and runs from the insurer to the  insured. In an excess judgment case, the issue is whether the insurer was  guilty of bad faith toward the insured in failing to settle the injured party’s  claim within policy limits. See, e.g., Kooyman v. Farm Bureau Insurance Co.,  315 N.W.2d 30 (Iowa 1982). In a first party action, the issue is whether the  insurer was guilty of bad faith in failing to pay