Argh! Another pothole damaged my car! Attorney answers how to make a claim for pothole damage
The one problem with being an insurance lawyer is with this influx of potholes everywhere, people keep asking me what they can do about the flat tires and more serious car damage they’re causing. I cannot remember it ever being this bad. Some streets look like they’ve been carpet bombed after this record winter.
Mostly, people want to know if their insurance will cover a claim for pothole damage.
Today I’d like to share answers to some of the most common questions I’m getting about damage to cars caused by potholes.
Q. Argh! Another flat tire. Does my auto insurance apply to damage from potholes?
A. Your own auto insurance will likely treat the pothole damage as a collision claim, but whether that’s the case will, generally, depend on the specific language in your auto insurance policy.
Here’s the bad news: These are usually smaller claims that tend to make your auto insurance rates go up. I normally advise people to avoid making small insurance claims for exactly this reason. One suggestion is to purchase added/optional wheel/tire coverage from your dealership when you buy or lease your vehicle. The coverage more than pays for itself with one claim.
Q. Can a driver sue the city or county for pothole damage repair costs?
A. Here’s the good news. Yes, you can make a claim against the city, county, or state of Michigan.
MDOT has a claim process for drivers with vehicle damage from a pothole that is on a “state trunk line.” A state trunk line is highway with an M, I or U.S. prefix, like I-696 or M-10, for instance. MDOT only has jurisdiction over state trunk lines.
Other roads are under the jurisdiction of counties, cities or villages, and as such, you will likely be out of pocket.
The state will consider an award only for the damages beyond what has been paid by your insurance company, and the state must have been aware of the pothole for 30 days without repairing it in order for a claim to be eligible for reimbursement.
Claims for less than $1,000 must be submitted to the MDOT regional office or transportation service center that covers the county where the incident occurred. If a claim is for $1,000 or more, it must be filed with the Michigan Court of Claims in Lansing.
The claim form and instructions are available on the MDOT website page, “How do I file a claim for damages to my vehicle cause by a pothole?”
That being said, making a claim – and recovering – against a city or county is difficult.
To begin, our government has nearly complete immunity for most claims. There are exceptions, such as if you are hurt in a car accident caused by a vehicle owned or operated by the government. But I recommend speaking to an attorney immediately on any case involving a governmental entity, as there are issues with giving legal notice and other hoops that people have to jump through.
In the case of a road defect, for example, a claimant has to show that the government had notice of the defect and had an opportunity to repair it. In the case of a roadway controlled by the state government, you also have to submit a notice of claim to the Court of Claims within 180 days of the accident/injury and comply with the very strict requirements for making such a claim.
Bottom line, unless it has caused a major injury or accident, in which case you will need to speak to an attorney about notice procedures immediately, it’s a lot of work for $1,000 of car damage from a pothole.
Q. Can a driver with pothole damage use the Michigan mini tort to cover the repair costs?
A. Michigan mini-tort does not apply for pothole damage, as it only applies to at-fault accidents involving vehicle versus vehicle.