INDIANAPOLIS (WISH) - Have expensive damage to your vehicle from a pothole? You can ask for the city or state to pay to fix it by filing a tort claim. But, I-Team 8 found most drivers are more likely to hit another pothole than get paid.
Snow removal from the weekend’s spring storm caused another round of new potholes to pop up across Central Indiana. City, county and state road crews are now out on the roads working to keep up, but the list of asphalt craters continues to grow.
That’s left drivers scrambling to avoid that dreaded thud--the annual sound of spring trouble.
“It is a busy time of year,” said Chris Cooper of All Star Tire and Auto Service in downtown Indianapolis. “The streets are unthawing, which allows the potholes or chuckholes to get bigger and swallow more tires. We’re seeing from one to five a day now.”
Fixing the problems the potholes cause can get expensive.
“The tire will hit the hole, then it bends back and hits your rim, and that bends your rim out,” said Cooper. “What that causes is the alignment on your car to go out. And, if you don't repair it fast enough, it does tricks to the side of your tire and causes the casing to start pulling away from your tire. You're about $150 to fix that, if it's fixable. And, a tire could be anywhere from $90 to $120. That’s just the minor fixes. You can damage your chassis. The tie rod or the lower control arm can go out. Add those in, and it jumps up pretty quick.”
Ahmad Zayed knows those costs all too well.
He hit a large pothole on Keystone Parkway in Carmel, bending the rims on two of his tires and throwing off his car’s alignment.
"It was a pretty deep pothole. My car just kind of jumped. It was significant,” he said.
Zayed paid $320 to have the dents hammered out. Buying a new rim was just too expensive, he said.
“I'm a full time college student, and I can't afford to do something like that,” Zayed said. “It still rides funny. It's not the same. It's like crushing a soda can and trying to put it back together. It's still flimsy.”
Short on cash, Zayed filed a tort claim, hoping to get at least some of the money back.
“I contacted the city. They told me I had to come into the office, pick up a tort claim, and give them some proof of the damage, which I did. A month later, I got a letter in the mail saying I’m not going to be covered.”
In its denial letter to Zayed, Carmel’s insurance carrier, Travelers Insurance, said road improvement work was being carried out in the area where he claims the damage occurred. Because of that, the city claimed it was not the negligent party.
Zayed filed a claim with the contractor hired to complete the road project, but says he never heard back.
But, I-Team 8 found that’s just one of a long list of reasons why municipalities, counties and the state deny pothole related tort claims.
According to records provided to I-Team 8, in 2012, 340 drivers across Indiana asked the state’s Department of Transportation to pay for damage claims after they hit a pothole. Just 44 actually got paid. That's just 13 percent.
In previous years, the average was slightly higher.
The state reported that it’s paid out $112,162 on 380 pothole related claims since 2009. That’s about 23 percent of the total claims filed.
Payouts at the state level can reach far beyond a typical rim repair cost, with some are as high as $2,150. I-Team 8 requested additional data on some of those high payments, which was provided the day after our investigation first aired.
The data showed most of the high payments were made to semi-truck drivers or transportation companies, who reported more expensive fixes to tires or rims. However, those who received a settlement were generally paid at or below 50 percent of the claim amount they submitted.
Payouts at the city and county level are much less common.
Indianapolis and Marion County still have not turned over their tort claim records more than three months after I-Team 8 first requested them. But, internal memos obtained by I-Team 8 suggest claim payouts are rare. In 2007, for example, the city's attorneys reported to Mayor Greg Ballard’s office that they paid on "less than one percent of all pothole claims filed."
Of the 32 pothole tort claims filed in Bloomington, Greenwood and Carmel since 2010, records obtained by I-Team 8 show not a single one has been paid.
Following the airing of I-Team 8's findings, the City of Muncie also responded to an initial public records request, reporting 48 pothole damage tort claims filed in the last three years. However, three months after first asking for the data, the city still has not reported the outcome of any of those claims.
Tort attorney Tom Doehrman, a partner at the Carmel based Doehrman Chamberlain Law Office says he's not surprised at the numbers.
“I think that's a reflection of the fact that they know they have the statutory immunity,” he said. “The legislature has passed a law that a temporary condition of a roadway, the state or city is immune from liability. And, so unless you're willing to hire an attorney and push the claim, it's probably an automatic denial.”
It's one reason why, after blowing his own tire on a pothole last month, Doehrman elected to pay for the problem himself.
“I didn't even bother to fill out a tort claim,” he said. “Most likely, if it's just property damage, you're not going to be happy about filing a tort claim.”
Doehrman says many cities have a hidden ace card up their sleeves: time.
“The city gives itself a seven day window. After a pothole is reported to us, we send our crews on the road. And, if they fill that pothole or take care of that pothole within seven days, they're not liable,” said Indianapolis Department of Public Works spokesperson Stephanie Sample.
According to city records, as of late March, 25 percent of the potholes on Indianapolis streets have taken more than seven days to fill.
But, most are filled long before that.
“Right now, we're running at about a 2.67 [day] turnaround time [on average] for each pothole,” Sample said.
But, even if you hit one of the potholes that’s been there for more than a week, there's still no guarantee you'll get paid.
“The city must have prior knowledge of the pothole,” Sample said. “Without that documented, the claim would be denied.”
That means, if you’re the first driver to officially report the pothole to the city, your damage claim is automatically denied. You must report the claim quickly as well in order to have hope of any re-payment.
“They have 180 days after their vehicle incurs damage to submit that tort claim in writing,” Sample said. “After that, it would be denied.”
Denials could also be given because of weather conditions.
Bloomington's insurance company cites everything from snow and ice to rain and fog as contributing factors to the formation of potholes in many of its denial letters. State law says weather can't cause negligence.
INCREASING YOUR CHANCES
Cities, counties and the state all conduct investigations of each tort filing, to ensure taxpayers aren't put on the hook for frivolous claims.
But, Zayed, the driver stuck with a $320 repair bill, says he believes many legitimate claims are denied as well.
“It's not fair,” he said. “I'm sure if something happened to their property, they'd want something to compensate for them.”
Doehrman says drivers shouldn’t hold their breath that payment policies will change anytime soon.
“It’s not likely,” he said. “Because, the people that have to change it are the state legislators. They're protecting the state budget. Now, if the consequences are more severe; if you can't work or have a serious injury, then you certainly want to contact an attorney and follow up on the claim. But, in most claims, it would not make sense to hire an attorney, because the expense would be more than the cost of the repair. That’s not something that’s likely to change.”
But, even if you think a legitimate claim might be denied, Doehrman says it's still worth your time to file it.
“There is a public benefit in filing a claim,” he said. “Maybe your tire was just blown out. But, at least there would be a record that notice was given. If the next person is not as lucky and they drive off the road and are injured, you've shown that they had notice or should have had notice. That might not solve your problem, but at least reporting it is the right thing to do. There’s not much else you can do but hope the person who hit the pothole before you did the right thing too.”
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