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How do you perform your duty to mitigate when your means of earning an income is taken from you?

Around the beginning of February I resigned from my nursing job so we could move to El Dorado County, 3 hours away. We made several trips emptying one of our two storage units up to Placerville. We were up in Pollock Pines for 3 weeks, until February 23, 2012 when we came back to Santa Rosa to empty out the second storage unit, as we found a home we could buy. An opportunity to purchase a 3 bedroom, 2 baths, home on 1.5 acres for $200,000 and the homeowner would carry the loan.

We came back because my husband, who has owned his own business for 20 years had set up a tree job where he could make about $6,000.00 to $7,000.00 between that and our savings we could facilitate the move, open, and close escrow, in one week.

On February 24th my husband took one load from our 2nd or last storage unit up to El Dorado County, and was heading back with the trailer to get the rest of our stuff from storage and me. He ran out of gas on about 45 minutes from Santa Rosa, he pulled well off the shoulder of the road, and put his flashers on.

Shortly thereafter a minivan coming around a bend in the freeway kept turning instead of straightening out, and following the road, and hit my husband’s truck and the trailer totaling both.

Fortunately no one was in the truck when it was hit. The minivan hit the trailer then hit the back of the truck, ripped the front end off the minivan, did a complete 360 in mid air, hit the front of the truck, rolled two times and landed in the middle of the freeway. The front axle of the minivan ended up in the back seat of our truck.

We have supplied the owner of the minivan’s insurance company with all the information including the accident report. The liability is 100% the other persons fault.

That was 60 days ago. We do not have a rental policy, all our money has been used up waiting this out. My husband has had to rely on friends to find a way to work. We have had to stay here at a hotel because we were in between houses. My husband is losing $500.00 a day in wages. Our bills are piling up now that I am not working and he barely is. We are still waiting to close on our house. Our storage unit which we were attempting to empty out went from $100/month to $251/month as our 6 month special was over on 3/1. I have sole custody of, my children, but because of this accident they are temporarily with their father as they had been enrolled in school in El Dorado County.

Our truck has been sitting at the tow yard for two months and that bill is $2475. All I keep hearing is “duty to mitigate”. How do you do that when your business vehicle is gone thereby stripping one of the ability to earn and income? If the insurance company had provided my husband with a truck we would not need lost wages. His truck had his business signs on it. It is not like he could take a bus to do construction. The loss from this accident is so much more than just a truck. If my husband had been in the vehicle I would be a widow now. Luckily his friend told him, "I feel like something bad is going to happen, get out to the truck now." Thankfully he got out, but no lawyer will take this case because there was no loss of blood. Not literally anyway.

Answer to How do you perform your duty to mitigate when your means of earning an income is taken from you?


First, I am sorry about the delay. We are updating our system and I took some time off and just now we are getting to all the questions pending. My apology for that.

Your question is a great question. How can you mitigate your damages if you really cannot. Insurance companies take the position that your financial situation (unability to get a wage or to pay for a rental car).

Insurance companies unilaterally will tell you that they have no duty to you unless there is an injury (or blood) like you said. However, damages are damages. You may be documenting a loss of business income, which does not necessarily require a bodily injury.

The key for you will be your ability to document you damages. Send a letter to the carrier telling them about your issues with mitigating your damages and you need help with this. If you still have issues, consider small claims court. You did incurred damages that need to be compensated for.

Good Luck
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