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SHARE RIDE LIABILITY-Help! I Crashed My RENTAL Car- Now What?

By J. Caleb Jones, Esq. and Robert Showers, Esq.

Car-Share services allow users to take advantage of vehicles on a short-term rental basis. Companies like Zipcar, Car2Go, Hertz on Demand, uHaul, and Enterprise CarShare allow users to rent vehicles on per-hour and even per-mile basis. This can be extremely convenient. For example, Zipcar advertises on its website that you can “Select a membership plan that fits your lifestyle – from as low as $7 per month.” With the average American used-car monthly payment reaching $391 in 2019 , it is easy to see why many opt for Car-Share services.  But what should you know before you download an app and drive away? What is in that contract you did not read? What do you do when things don’t go as planned? What if you’re reading this because you crashed your car-share rental?

Remember Your Liability and Keep Records

In our digital age, who actually reads the contract you sign by clicking “Yes, I Agree to the Terms and Conditions”?

Nobody, it seems – even though you should and in the case of ride share rentals, it is a MUST.

For this reason, most car-share customers do not realize that they are responsible for all damages to their rented vehicle, regardless of fault. Customers are often surprised to find themselves being held responsible for pre-existing damage to the vehicle that was not noticed until after the customer’s vehicle use. Additionally, many car-share customers do not know that your rental fee doesn’t “pay for” small scratches and dents that come with parking in a city.

According to most rental contracts, you must pay, regardless of fault or severity.

For this reason, you should always note and document damage to the vehicle before taking that quick trip to the grocery store. Though customers are generally not responsible for damage that comes outside their time using the vehicle, this fact will not help you if you cannot prove it.

To protect yourself in these situations, you should do several things before and after using a Car Share vehicle.

  • Document ALL damage that you notice on the rental vehicle:
    • No matter how small,
    • Inside and out, and
    • Both on the company’s system and for your own records.
  • Save these records digitally for future reference:
    • Use keywords like “ZipCar” or “Beach Vacation” to help you find it later.
    • Make notes, including dates, times, and fault.
    • Do not assume that you caused a dent, scratch, or damage unless you are certain you did.

The Way Car Sharing Companies Write Their Contracts

When trouble comes, customers may think they are safe from liability, because they have a good explanation. This may be true, yet demand letters and liability still come and the Ride Share Contract is not written in the customers’ favor.

Most companies in a Metro area, like DC, New York, Philadelphia etc., that offer car-share rental services have a take-it-or-leave-it contract. There is no negotiation. If you do not accept all of the terms and conditions of the agreement, you are not authorized to use the company’s car sharing services. If you don’t like the contract, you are free to walk to the airport carrying your 3 bags and the pet you’re taking along on your vacation. Good luck with that!

Because of this negotiating power, car-share companies draft their contracts skillfully so that they can determine how their property is used and whose wallet suffers when things go bad. This contract is the document you didn’t read when you clicked “Yes, I agree to the Terms and Conditions” when you downloaded your app and got into the car.

Additionally, most car sharing companies reserve the right to change the terms of their contract — sometimes with written notice to you, and sometimes without it. This is a tool companies use to keep control over the services and features offered in their Terms of Service, but it also affects – the customer. If the company does not send out notice, then you accept responsibility to regularly check the agreement. If the contract requires the company to give you notice of contract changes, there is a good chance that this is the second (or third, or fourth….) legally binding document that binds you.

Additionally, most rental companies prevent you from enforcing the contract against them in litigation, through mandatory arbitration clauses and waivers of class-action rights. They often require you to litigate any matters relating to the contract in an arbitration proceeding. These arbitration proceedings are often next door to the car-sharing company’s headquarters, but they are across the country for you, the customer.

It’s often only when things go bad that customers learn these contracts are written to benefit the car-share company, and not the customer.  So what can you do to protect yourself?

But I Have Insurance, Right?

If you own a car and have insurance, you may have coverage for rental cars through that policy. Insurance policies for rental vehicles are available for purchase and may be in your interests to purchase if you are able.

But for those who do not have or cannot private insurance, bumps, dents, scratches, and car accidents still happen and may not be covered. The car-share companies know this. For this reason, companies generally offer liability insurance as an extra charge, so that they can receive more money and the user is not responsible for liability in some circumstances.

For this reason, Car-Sharing customers who purchase such additional insurance often think they are protected when they get into an accident or when someone dents the door. After all, you have insurance, right?  Wrong.  

Though general liability waivers offered by car-share companies protect for some damage, it is typical for protection to be limited in significant ways, often to your disadvantage. You may find yourself paying for damage even if the damage was not your fault. For Example:

Car2Go states in its newest[1] Terms and Conditions[2] document:

  • Before any insurance applies, you will be responsible for a deductible of up to $1,000 if:
    • (a) any incident, collision, or accident occurs, or damage is sustained by reason of your fault;
    • (b) if fault for any incident, collision, accident, or damage cannot be determined; or
    • (c) if damages for any incident, collision, accident, or loss resulting from your use of a Vehicle cannot be recovered from a third party.

That means you could be forced to pay $1,000 if Car2Go cannot determine who is at fault. You could be forced to pay $1,000 if someone else is at fault and you are completely innocent, but Car2Go cannot recover money from that responsible person! Yikes!

Likewise, Zipcar’s latest[3] membership contract[4] explains how a member is responsible for damage.

  • Though statutory liability insurance minimums are included in Zipcar membership contracts for injuries to third parties, a Zipcar customer (called a “member” in the contract) is responsible for all damages to the vehicle, even weather-related damage and damage caused by a third party.
    • If the car is stolen, scratched, or even totaled in an accident, the cost to repair or replace the vehicle is the customer’s responsibility — Period. – …unless the member purchases liability coverage.
  • But when the member purchases liability coverage through the contract, it is not the liability coverage you are looking for.
    • The member may be protected against damage, so long as the member follows all the terms and conditions of the contract – yes, same contract you didn’t read.
    • And if you have followed all the terms and conditions, you are forced to move along…
  • To the Damage Fee! Instead of being liable for the full cost of damage to the vehicle, the member is:
    • Liable to pay the damage fee.
    • This damage fee is a flat fee of $1,000.[5]
    • Unfortunately, since the Damage Fee is flat fee, and not a cap on liability, it means…
    • the member is responsible for $1,000 even if the repair costs less than that or the customer is not at fault.
    • This means you are responsible for $1,000 for any damage – Period – …unless the member purchases a Damage Fee Waiver.
  • If the member purchases a Damage Fee Waiver, the member no longer has the responsibility to pay the Damage Fee. Rather:
    • The member is only liable for damages to third parties that exceed the state’s statutory minimum insurance amounts, but
    • If you do not follow all the terms and conditions of the membership contract (which you did not read and is subject to change), then you are liable for all damages whether damage to the car or a third party.

Period. End of Story.

Do you see how this goes? Normal people believe they aren’t responsible for problems they did not cause. Normal people think that they shouldn’t be responsible for a problem beyond what the problem costs.

But these contracts were not written by normal people. These contracts were written by lawyers who do not have your best interests in mind and assume nobody reads them until it is too late.

The Trouble After an Accident

After a collision or damage to your vehicle, you may find yourself receiving letters from your car-share company declaring that you are responsible for damage to the vehicle, and that you must pay a certain amount of money. We know these communications can be troubling.

Because of the strength of a car-share company’s contract, you may believe you have no choice to resist their demand, and you may not understand the terms and conditions in your contract (which you will likely be reading for the first time after a collision).

Is it possible for anyone to help? Yes!

Yes! We Can help!

Luckily for you, lawyers at Simms Showers LLP read the fine print of your car-share rental contract. Even better: we are staffed with experienced attorneys who can even understand it. We have handled these problems before.

The attorneys at Simms Showers also know that simply because a company claims they are owed money by their contract, that doesn’t mean it’s true. We also know that you may have a justifiable story, but that it is difficult to be heard by a company that does not have your interests in mind.

We know that sometimes it is best to fight lawyers WITH lawyers. And that’s why we’re here.

If you are faced with a significant charge for damage to your vehicle, we can hear your story and give you an idea of the problem you are facing. We can also use the car-share company’s contract against them with our knowledge of their processes for billing customers like you.

You should look for a law firm who is experienced in all aspects of the aftermath of a vehicle collision, including when your rental or ride share car is damaged.

Our attorneys are experienced in all the essential pieces of a car-share vehicle collision in ways that other firms are not. We know that both a criminal case and a civil case are involved and both are essential to your case. For example:

  • Even if you were at fault in an accident, were you driving “recklessly” in violation of your car-share contract?
  • Even though the contract has provisions saying you are responsible for damage to the vehicle, do these provisions apply to you in this particular situation?

We can protect you on all sides whether civil or criminal liability. Let us or attorneys which have the requisite experience in these kind of matters, use our experience to help you sort through your accident or demand letter and insurance questions.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers, LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at hrs@simmsshowerslaw.com  or Caleb Jones at jcj@simmsshowerslaw.com or call 703.771.4671 for legal advice that will meet your specific needs.

 

[1] Effective July 29, 2019 in the United States.

[2] https://www.car2go.com/media/data/na/legal/ca-us_en_2019-t-cs-27_07_2019.pdf

[3] Effective August 1, 2018 in the United States.

[4] https://members.zipcar.com/boston/member-contract

[5] https://support.zipcar.com/hc/en-us/articles/220333628

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