# When Another Driver Hits Your Wheelchair Van: Repairs, Downtime, and Lost Trips

Canonical URL: https://nemtguide.com/guides/nemt-van-loss-of-use-claim/ · Updated 2026-10-02

Loss of use is the money a business loses while a damaged vehicle is off the road: a rental, or the profit from trips it could not run. When another driver hits your NEMT van, claim it from that driver's insurer along with the repairs, and prove it with trip logs and broker reassignments. Your own collision coverage pays repairs, minus the deductible, but not lost income.

- Claim against the at-fault driver's insurer first: there is no deductible, and it should pay for a rental or lost profits too.
- Your own collision coverage pays faster but charges the deductible, then recovers from the other side.
- Texas allows loss-of-use damages even when the van is totaled, for the time reasonably needed to replace it.
- Trip logs, manifests, and the broker's reassignment records are your proof of lost trips.
- The time to sue over vehicle damage is two years in Texas, three in California, and four in Georgia.

A crash you did not cause still costs you twice: once for the repair, and again for every trip the van misses while it sits in the shop. This page covers the money side of the claim: who pays, what they owe, and how to prove the trips you lost. For the first hour, the police report, and the notices your broker expects, see [what to do after a NEMT vehicle accident](https://nemtguide.com/guides/nemt-vehicle-accident/).

## Two ways to get paid for the damage

You can claim from the at-fault driver's insurer, from your own collision coverage, or start with one and switch to the other.

### A claim against the other driver's insurer

This is a third party claim, and it carries no deductible. The Texas Department of Insurance's auto guide (updated December 11, 2025) says you do not pay a deductible on a claim against another driver's insurance company. Its guidance on not-at-fault crashes (updated April 24, 2025) says that insurer should pay for your repairs, medical bills, and a rental car. The catch is that you have no contract with that insurer, and the same guidance warns that it may say its driver was not at fault, blame both drivers, or stop answering. If it refuses, ask for the reason in detail and in writing.

### A claim on your own collision coverage

Georgia's Office of Commissioner of Insurance says you may file under your own physical damage coverage even when someone else may have caused the accident. Your insurer pays the repair minus your deductible, then goes after the other driver's insurer to get its money back. That recovery is called subrogation.

California regulates how it works. Under 10 CCR 2695.7(p) and (q), your insurer must tell you in writing whether it will pursue the other side, include your deductible in any subrogation demand, and share what it recovers with you on a proportionate basis. If it decides not to pursue, any recovery is up to you.

### Using both

Start with the other driver's insurer when fault is clear, and move to your own coverage if it stalls. California bars an insurer, where liability and damages are reasonably clear, from telling a third party claimant to use their own policy just to avoid paying (10 CCR 2695.8(d)).

Once your own insurer pays, the business auto form transfers your right to recover from the other driver to the insurer, and you must do nothing after the loss to impair it. So do not sign a release with the other driver's insurer without telling your own.

## What the at-fault driver's insurer should pay

The other driver's insurer owes what its driver would owe you, up to its policy limits. For a NEMT van that usually means four things.

- **The repair, or the van's value if it is totaled.** In California, a cash settlement for a total loss is based on the actual cost of a comparable vehicle, with taxes and transfer fees, and that standard also applies when an insurer evaluates a third party total loss (10 CCR 2695.8(b)).
- **Towing and storage.** In California, the rule that insurers pay reasonable towing and storage needed to protect a damaged vehicle also applies to a third party claim, though the at-fault driver's insurer may cut the payment by your share of the fault (10 CCR 2695.8(k)).
- **A rental.** The Texas Department of Insurance says the other driver's insurer will pay for a rental for the time it believes is reasonable to repair your vehicle, based on the estimated labor hours. Tell the adjuster about parts delays. If the insurer totals the vehicle, it may stop paying for the rental a few days after telling you.
- **Loss of use.** The money you lost because the van was off the road, explained below.

### Loss of use, even after a total loss

Texas appeals courts had long refused loss-of-use damages when property was totally destroyed. In J&D Towing v. American Alternative Insurance Corp. (No. 14-0574, January 8, 2016), the Texas Supreme Court changed that. J&D owned only one tow truck, another driver was solely at fault, and the truck was a total loss. The court held that an owner of totally destroyed property may recover loss-of-use damages on top of its market value just before the crash.

The opinion also sets the limits. Loss of use may be measured by lost profits, the cost of renting a substitute, or the rental value of your own vehicle. The damages must be foreseeable and directly traceable to the crash, they cannot rest on guesswork, and they cover only the time reasonably needed to replace the vehicle. Move promptly on repairs or a replacement, and keep proof that you did.

### Diminished value

A repaired van can be worth less than one that was never hit. A business auto policy on the standard form will not pay that loss: the 10 13 edition excludes diminution in value, which it defines as the actual or perceived loss in market or resale value after a direct and accidental loss. Georgia shows how much the policy wording matters. In State Farm v. Mabry (2001), the Georgia Supreme Court held that an insurer's promise to pay for the insured's loss includes paying for any lost value, and a federal court in Georgia noted in 2017 that this holds absent an appropriate exclusion. Ask the at-fault insurer in writing whether it will pay diminished value, and ask your agent how your state treats it.

## What your own business auto policy pays, and what it does not

The business auto form (CA 00 01 10 13, in the copy the County of Sonoma posts) pays for direct and accidental loss to a covered auto under collision coverage, subject to the deductible on your declarations. A later edition of the form, or an endorsement on your policy, can change the amounts below, so read your own policy next to this list.

- **The most it pays** is the lesser of the actual cash value of the van at the time of the loss or the cost to repair or replace it with property of like kind and quality. For a total loss it adjusts for depreciation and physical condition, and it does not pay for betterment. Unless the policy says otherwise, California treats actual cash value as fair market value.
- **It pays no lost income.** The only pay for your own downtime in the form is $20 a day, up to $600, for transportation expenses after the total theft of a private passenger auto. Wheelchair vans out for collision repairs get nothing from that clause. The Texas Department of Insurance describes rental reimbursement coverage, which pays for a rental while your vehicle is repaired after an accident, and Georgia's insurance office lists it as an optional coverage. Ask your agent whether it can be added to your business auto policy and at what daily amount.
- **It pays no diminished value,** under the exclusion above.

### When the insurer values a converted van like a plain one

A total loss valued at the price of a plain van, without the wheelchair conversion, leaves you short. On your own policy, the dispute route is the appraisal clause (Section IV.A.1 of the form). Either side may demand an appraisal of the amount of loss. Each side hires an appraiser, the two choose an umpire, and a decision any two of them agree on is binding. You pay your appraiser and split the umpire's cost, and the insurer keeps its right to deny the claim. In California, a comparable vehicle for a total loss must have options and mileage similar to yours (10 CCR 2695.8(b)(2)). How a policy values the conversion in the first place is covered in stated value vs actual cash value.

## How to prove lost trips and lost income

An adjuster pays loss of use on records, not estimates. Build the file while the van is still in the shop.

1. **Pull the van's trip history.** Print its trip logs and manifests for the weeks before the crash, with trips, miles, and pay per trip. See [NEMT trip documentation](https://nemtguide.com/guides/nemt-trip-documentation/).
2. **List every trip you lost.** Write down each trip the broker reassigned or you turned back, with the broker's trip number and date. CareOregon's provider manual (version 1.3, February 2024) lists vehicle capacity limits, such as a vehicle out for maintenance, as an acceptable reason to ask for reassignment, so these requests leave a record.
3. **Note standing orders that moved.** List the recurring riders the broker moved to another provider, and whether they came back.
4. **Work out the lost profit,** not just the lost pay. Subtract the costs you did not spend because the van was parked, such as fuel.
5. **Keep the replacement record.** Save rental invoices, quotes, and notes of the dealers or conversion shops you called, so the time out of service looks as short as you could make it.
6. **Send it with a written demand,** and keep a copy of everything you send.

Here is the math, with example numbers:

**Lost profit = pay for the trips you lost − costs you did not spend while the van was parked**

Say the van normally bills $1,700 a week and burns $250 a week in fuel. Three weeks in the shop is ($1,700 − $250) × 3 = $4,350 of lost profit. If you rented a replacement and kept running the trips, claim the rental cost instead, because you did not lose the trips. Your [revenue per vehicle hour](https://nemtguide.com/glossary/revenue-per-vehicle-hour/) is a quick check that the weekly figure matches the van's normal pace.

## Keeping trips running while the van is down

Tell your broker the van is out the same day. CareOregon's manual asks providers to request reassignment with as much notice as possible, and to report to dispatch immediately when they cannot perform a trip for any reason, so the brokerage can try to give it to another provider. It also warns that a pattern of too many reassignments, or last-minute ones, can lead to a corrective action plan, so early notice protects your standing as well as your riders.

If you rent or borrow a replacement, the business auto form treats a vehicle you do not own, used with the owner's permission as a temporary substitute for a covered auto out of service for repair, as a covered auto for liability. Damage to the rental is a different matter. It falls under hired auto physical damage, if you carry it, and in the 10 13 edition that coverage pays at most $20 a day, up to $600, for the rental company's loss of use charges. Get the rental credentialed with the broker before it carries anyone. MTM Health's standard agreement (January 1, 2023, section 9.D) also requires you to tell MTM immediately when you add or remove a vehicle on a scheduled auto policy. See renting wheelchair vans and [hired and non-owned auto coverage](https://nemtguide.com/glossary/hired-and-non-owned-auto/).

If the van is totaled and you buy a replacement, check your [auto symbols](https://nemtguide.com/glossary/commercial-auto-symbols/). With symbol 7, specifically described autos, a newly acquired van is covered only if you already insure every auto you own for that coverage or it replaces one that had it, and only if you tell the insurer within 30 days after you acquire it.

## When the other driver has no insurance or too little

State minimums for property damage are low. Texas requires $25,000 of property damage liability (30/60/25 coverage), and Georgia requires $25,000 per incident. When your repairs cost more than the other driver's limit, the Texas Department of Insurance says your collision or uninsured/underinsured motorist coverage should pay the difference, minus your deductible. Collision coverage never pays for lost trips, though.

That is how J&D Towing reached the Texas Supreme Court. The at-fault driver's insurer paid its property damage limit, and the towing company then claimed its loss of use under its own underinsured motorist coverage, which paid the damages it was legally entitled to recover from the at-fault driver. On a business auto policy, uninsured and underinsured motorist coverage comes by endorsement, so check your declarations before you need it. See [uninsured motorist coverage on commercial auto](https://nemtguide.com/glossary/uninsured-motorist-coverage/). In Texas, that coverage will not pay for a hit-and-run you did not report to the police, as the [accident guide](https://nemtguide.com/guides/nemt-vehicle-accident/) explains.

## Deadlines that run after the crash

Two sets of clocks start at the crash: the insurers' deadlines to answer you, and your deadline to sue.

**Insurers.** In California, the other driver's insurer must acknowledge your claim, send the forms, and start investigating within 15 calendar days of notice (10 CCR 2695.5(e)). It must accept or deny the claim within 40 calendar days after proof of claim, and send written notice every 30 days if it needs more time (2695.7(b) and (c)). In Texas, the prompt payment deadlines apply to your own insurer, and the Department of Insurance says the other driver's insurer must still act in good faith. Your own policy also requires prompt notice of the accident, so report it even while you pursue the other driver.

**Lawsuits.** If the claim does not settle, state law sets a deadline to sue the other driver over the damage to your van, counted from when the claim arises:

| State | Time to sue over vehicle damage | Law |
|---|---|---|
| Texas | 2 years | Civil Practice and Remedies Code 16.003 |
| California | 3 years | Code of Civil Procedure 338(c)(1) |
| Georgia | 4 years | O.C.G.A. 9-3-31 |

Talk to a lawyer well before the deadline, and do not wait for settlement talks to end. Log every call and letter with both insurers in one claim file, and add the claim to your loss runs review at renewal so you can explain a not-at-fault crash to the next insurer.

## Frequently asked questions

### Can I claim loss of use if my van was totaled?

In Texas, yes. In J&D Towing v. American Alternative Insurance Corp. (January 8, 2016), the Texas Supreme Court held that the owner of totally destroyed property may recover loss-of-use damages on top of its market value just before the crash. The case involved a towing company with one truck. The damages must be foreseeable, provable, and limited to the time reasonably needed to replace the vehicle. Other states set their own rules.

### Should I pay for a small fender bender myself instead of filing a claim?

You can choose not to claim a small loss, but still tell your insurer. The business auto form requires prompt notice of any accident or loss, and it lets you make a payment or take on an obligation without the insurer's consent only at your own cost. A reported accident can still show on your loss history: in Illinois, the loss information an insurer gives a business must list occurrences that never became claims, with the date and a description, next to closed and open claims. Ask your agent how a small claim would affect your premium.

### Does business interruption insurance pay while my van is in the shop?

Do not count on it. California's Department of Insurance describes business interruption as a commercial property coverage: it replaces income lost after a direct loss by a covered peril to the business property that policy insures. Damage to your vans is covered by the physical damage part of your business auto policy, and the business auto form has no lost income coverage at all. So the money for downtime usually comes from the at-fault driver's insurer. Ask your agent in writing whether any policy you carry pays income lost while a van is in the shop.

### Will I get my deductible back if I claim on my own policy?

Often, if your insurer recovers from the other side. In California, an insurer that makes a subrogation demand must include your deductible in it and share what it recovers with you on a proportionate basis. It must also tell you in writing whether it will pursue the other side at all. The Texas Department of Insurance says that if your insurer gets money back, you might get your deductible reimbursed.

### Can the insurance company make me use its repair shop?

Not in California or Texas. California's fair claims regulations bar an insurer from requiring repair at a specific shop and, with limited exceptions, from suggesting a different shop after you choose one. In Texas, Insurance Code 1952.301 bars an auto insurer from limiting your choice of repair shop under your own policy, and from requiring a third party claimant to use a particular shop. Pick a shop that knows wheelchair conversions and lifts, because the lift and floor may need work too.

### What if the insurer values my converted van like a plain cargo van?

On your own policy, use the appraisal clause. Under the business auto form, either side may demand an appraisal when you disagree on the amount of loss: each hires an appraiser, the two pick an umpire, and a decision two of them agree on is binding, though the insurer keeps its right to deny the claim. In California, a comparable vehicle for a total loss must have options similar to yours.

### How long does the other driver's insurer have to answer my claim?

In California, the other driver's insurer must acknowledge your claim within 15 calendar days and accept or deny it within 40 calendar days after it gets proof of claim, with written updates every 30 days if it needs more time. Any denial must be in writing. In Texas, the prompt payment deadlines cover only your own insurer, and the Department of Insurance says the other driver's insurer must still act in good faith and settle quickly and fairly.

## Official resources

- [Texas Department of Insurance: Dealing with the other driver's insurance](https://www.tdi.texas.gov/tips/how-to-deal-with-the-other-drivers-insurance.html)
- [California Department of Insurance: Fair Claims Settlement Practices Regulations](https://www.insurance.ca.gov/01-consumers/130-laws-regs-hearings/05-CCR/fair-claims-regs.cfm)
- [Georgia Office of Commissioner of Insurance: File a consumer insurance complaint](https://oci.georgia.gov/file-consumer-insurance-complaint)
- [ISO Business Auto Coverage Form CA 00 01 10 13 (County of Sonoma copy)](https://sonomacounty.gov/Main%20County%20Site/General/Sonoma/Sample%20Dept/Sample%20Dept/Divisions%20and%20Sections/Liability/Services/Help%20Request/Subpages/Help%20Request/_Documents/BusinessAutoCoverageForm_CA_00_01.pdf)