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Bo-Victim Thought he had Insurance but the Agent did not Insure

 

Question

I borrowed a friend's car and by accident caused body damage to another car that belonged to my friend. I drove the car that I damaged to a local unlicensed garage that people recommended and he asked for a thousand dollars to repair the car. When I reported this to my friend, he told me that he has insurance on the car and if I use an unlicensed shop, insurance won't cover the repair but if I go to a licensed shop, he will file an insurance claim and I will just need to pay him a hundred dollars to cover his costs. I then took the car to a licensed shop and they charged sixteen hundred dollars for the repair, which I paid and I brought the receipt to my friend to file an insurance claim which he did. However, insurance turned down his claim because it turns out that his agent never added insurance to cover damages that were sustained by the car from a third-party even though he had asked him to do so. Is my friend obligated to pay me the extra six hundred dollars that I paid to the licensed shop because of his mistake?

Answer

Whenever we wish to require someone to pay money, we have to first determine the basis for the claim. In your situation your friend gave you incorrect information which caused you to make an incorrect decision and to spend extra money. Whenever one damages in a causative manner we have to clarify if the damages fall into the category of gromo for which one is not liable or garmi for which one is liable.

In your case the causative damages that your friend did were that he caused you to spend six hundred dollars needlessly. Therefore, we must first determine whether causing someone to spend money needlessly constitutes garmi.

One case in the SA where we find that causing someone to spend money needlessly constitutes garmi is where A told B that he should go to a certain place in order to have their dispute adjudicated. The Ramo (14, 5) rules that if, based on A's word, B went to the place and A failed to show up, A is liable for B's expenses because he damaged B in a manner that is classified as garmi.

Another case that is cited by SA (CM 333, 8) is that if A told a carpenter to make something for him and then he changed his mind and did not want it, and the carpenter cannot find another customer, A is liable for the carpenter's expenses because what A did is classified as garmi.

Thus, we see that when one causes another person to spend money needlessly the damages are classified as garmi.

In the cases we cited the one who caused the damage actually told his victim to spend money. However, in your case the owner of the car did not tell you to fix the car in the more expensive garage but just gave you incorrect information which caused you to spend money needlessly. Therefore, we must determine if one who gives incorrect information is liable as garmi.

A case in the Gemara (BK 99B) where this issue is discussed is one who consulted an expert in counterfeit coins to render his opinion whether a coin was genuine and the expert incorrectly told the person that the coin was genuine when in fact it was counterfeit. The Gemara rules that if the person relied on the expert's opinion and accepted this coin from someone who owed him money, under certain circumstances the expert is liable for the person's loss. Since the reason he is liable is because it is garmi, we see that giving incorrect advice that caused someone to lose money is classified as garmi.

Another case where we see that one who gives incorrect information is liable for the resultant losses is where C informed A that he can lend B money because B is reliable. The Ramo (129, 2) rules that if the information was incorrect at the time it was given, C is liable for A's resultant losses. The Shach (note 8) comments that the reason is because one should not say that someone is reliable unless he really is aware of all of his monetary affairs since a person can own lots of possessions but at the same time have many debts. The Nesivos (note 2) comments that this shows that the reason C is liable is because he damaged in a manner that is classified as garmi.

Thus, we have seen that one who gives incorrect information that causes someone to spend needlessly, like your friend did, is liable as garmi.

The issue that remains is that your friend had no intention to mislead you and he was misled by his agent. Therefore, we must determine if one who only accidentally caused damage is still liable as garmi.

We know that when one damages directly, the Gemara (BK 27B) states that the person who damages is liable even if he only damages accidentally. Since garmi is a way in which a person damages, it would seem that the one who damages should be liable even if he only damages accidentally. However, in order to resolve the issue fully it is necessary to examine the source for the liability for garmi.

The Ramban (Kuntress Garmi that is cited by Shach 386, 1) maintains that the liability is Biblical and that even if the damage is accidental, the one who causes the damage is liable since it is included in the rule that when one damages a person, he is liable even for accidental damages. The Shach (ibid and 386, 6) disagrees both with the source and also with the resultant law. He maintains that the liability for garmi is a Rabbinic fine and is only on imposed on one who intentionally causes damage.

However, the Shach's position is problematic because we find in several of the cases that are cited by the Gemara that the person who damages in the manner of garmi is liable even though he had no intent to damage. For example, in the case of the person who checked for counterfeit coins the Gemara rules that even if he mistakenly asserted that a coin was genuine when it was actually counterfeit, he is liable. This seems to run counter to the Shach.

This question is resolved by many meforshim (e.g., Noda Beyehuda CM 1, 37) including the Ramban himself (ibid when he explains the opinion that was adopted by the Shach) to explain that the coin expert is liable because, as the Gemara states (BK 99B), his incorrect opinion is a result of carelessness on his part since he should have studied the matter more carefully before rendering a decision.

A practical case where this was applied was a question that was posed to the Maharsham (5, 11) concerning a lady who was hired to bake cookies for a chasuna. After she baked the cookies, they turned out to be sour and not sweet because she confused an ingredient due to the carelessness of her supplier. The Maharsham ruled that since the supplier should have tasted the ingredient first, he was liable for the flour and other materials that were wasted due to his carelessness

Thus, we see that even those who rule that one is not liable for accidental garmi agree that if the accident results from carelessness, he is liable.

The Chazon Ish (BK 5, 3) sets down guidelines for what is considered carelessness. He proves that just like when dealing with damages that result from a fire, the one who lit the fire is free from liability only for damages that are infrequent consequences (ru'ach she'eino metsuyo) so too with unintentional garmi: One is only free from liability if it is unlikely that damages will result from the behavior of the one who caused the damage.

Applying the rule of the Chazon Ish to your situation, if it is rare for people who asked their insurance agent to add coverage to not have coverage then your friend would not be liable since his misleading you would be accidental garmi. However, if it not rare that people who asked their agent to add coverage are not covered (for whatever reason), as seems to be the case, he is liable for your loss. This is especially true nowadays since it is very easy to check if one actually has coverage. Thus, one who is reasonably prudent would generally check if he has coverage before spending the money.

Therefore, when your friend informed you that you will be reimbursed by insurance without first ascertaining that this is correct, he acted carelessly and he therefore is liable for your loss since his causative damage is classified as garmi.

In conclusion: Your friend must reimburse you the six hundred dollars. In turn, your friend has a basis to ask his agent to pay him the six hundred dollars.

 

 

 

 

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