Loss of use claim for a commercial vehicle: getting paid for missed NEMT trips during repairs

When another driver puts your van in the shop, the claim against that driver’s insurer has a part for the time the van cannot work. That part is loss of use. It is paid as the cost of a substitute van, or as the profit you lost when there was no substitute, for as long as the repair reasonably takes. The first hour after the crash and the reports that follow are in the vehicle accident guide. The resale value the van loses is a separate item in the same claim, explained in the diminished value guide.

What does a loss of use claim cover?

It covers the economic loss from being without the van for a reasonable period, measured by what that loss actually was. When the Texas Supreme Court decided J&D Towing v. American Alternative Insurance in January 2016, it quoted section 928 of the first Restatement of Torts: damages for harm to a vehicle include the repair or the drop in value, and “the loss of use.” The court named three yardsticks for that loss: the profit the business lost, what a substitute cost to rent, and what the owner’s own vehicle would rent for.

California frames it through its civil jury instructions. CACI 3903M (2026 edition) asks the owner to prove the reasonable cost to rent a similar vehicle for the time reasonably necessary to repair or replace it. A separate instruction, CACI 3903N, covers lost profits for an established business.

Loss of use also survives a total loss in both states. In J&D Towing, a company with a single tow truck lost it in a crash the parties agreed was entirely the other driver’s fault, and the court held that loss of use can be recovered in addition to the truck’s market value. CACI cites Reynolds v. Bank of America (1959), where the California Supreme Court allowed loss of use for a destroyed commercial vehicle during the time needed to replace it.

The limits come from the same opinion. Loss of use is a consequential damage, so it must be foreseeable and traceable directly to the crash, and the evidence has to rise above guesswork. For a working NEMT van, the lost trips are easy to foresee. The work is in proving them.

Rental or lost profit: which one to claim

Claim what actually happened. Rental and lost profit can never cover the same days.

• A rented accessible van carried your riders. Claim the rental charges and the costs of getting it on the road. Your trips were not lost, so there is no lost profit for those days. Rates and the coverage rental companies require are in the commercial rental guide.
• No substitute was available. Claim the net profit the van would have earned. Keep a note of every dealer and rental company you called, with the date and the answer, to show the search was real.
• You rented, but the broker had not approved the van yet. MTM Health, for example, admits a vehicle to its network only after an in-person inspection by an MTM representative. Claim the rental for the whole period and lost profit for the broker trips you turned back while you waited for approval.

How long the at-fault insurer owes you for

The period is the time reasonably needed to repair the van, or to replace it if it is a total loss. According to the Texas Department of Insurance’s auto guide, the other driver’s insurer covers a rental for as long as it judges the repair should take, an estimate built from the labor hours. Parts orders or newly found damage can stretch that, and the guide tells owners to report each delay to the adjuster. Once the insurer declares a total loss, it may end rental payments a few days after it notifies you.

A labor-hours estimate can miss the slow parts of fixing a converted van. The floor structure, door extensions, and ramp are the converter’s parts, not the chassis maker’s, and a shop may wait on them. Send the adjuster the shop’s written parts dates as they change.

Replacement can take longer still. BraunAbility describes mobility vehicles as a small market, and it says converting an owner-supplied vehicle takes about six weeks on average, a clock that starts only once you have a vehicle to convert. Keep the dates of every search, quote, and order.

The other side of the period is your duty to keep the loss down. J&D Towing says loss of use cannot be awarded for longer than reasonably needed to replace the property, and California’s CACI 3931 bars damages you could have avoided with reasonable effort or expense. The same instruction judges your efforts by what you knew at the time, not by hindsight, and lets you recover reasonable amounts you spent trying to limit the harm. In practice:

1. Authorize the repair as soon as the van has been inspected.
2. Ask the shop for a written estimate of the finish date and update it as parts arrive.
3. Start looking for a substitute van the same week, and record each call.
4. Return any rental the day your van comes back.

Working out lost profit from your trip history

Lost profit is the revenue the van would have earned, minus the costs you would have spent to earn it. California’s CACI 3903N puts it in those terms, and its authorities state that business damages are based on net profits, not gross revenue. The figure needs a reasonable basis, not mathematical precision.

Build the number from the van’s own records:

1. Set a baseline. Count the van’s completed trips per working day and its average payment per trip over the period before the crash. Eight to twelve weeks smooths out holidays and one-off days. If your volume swings by season, compare the same weeks a year earlier as well.
2. Count the working days lost. Use the date the van entered the shop and the date it came back, or for a total loss, the date its replacement could start work.
3. Subtract trips your other vans absorbed. Those trips were not lost. Only claim trips you returned to the broker, sent to another provider, or declined.
4. Back up the count. Keep each turned-back trip with its broker trip number and date, the standing orders the broker reassigned, and any facility or private-pay rides you declined.
5. Subtract the costs you avoided. Fuel for the trips that did not run, and driver wages only for hours you did not pay. Costs that continued while the van sat, such as its insurance and loan payment, are not savings and stay out of the subtraction.

As an example, take a wheelchair van that averaged 10 paid trips per working day at $62 per trip over the ten weeks before the crash, and spent 15 working days in the shop. Other vans absorbed 2 trips a day, so 8 trips a day were lost:

• Lost revenue: 8 trips × $62 × 15 days = $7,440
• Fuel not spent on those trips, at about $45 a day: $675
• Driver wages saved: none, because the driver covered shifts in other vans
• Lost profit: $7,440 minus $675 = $6,765

Every figure in that example is invented to illustrate the method. Your own baseline, rates, and costs replace each one.

What your own policy pays while the van is down

Your collision coverage pays to repair the van, minus the deductible. It pays nothing for lost trips. The 2013 edition of the standard business auto form (CA 00 01 10 13) has just two daily payments in its physical damage section, and neither fits a van in the shop after a crash. One pays $20 per day, up to $600 in total, toward temporary transportation after a private passenger type auto is stolen outright. The other pays the same amounts toward loss of use charges billed by a rental company, when you rented a vehicle under a written contract and carry hired auto physical damage coverage. Check the form edition listed on your own policy.

Rental reimbursement is the coverage built for downtime. Texas’s insurance department explains that it pays a fixed amount per day toward a rental during accident repairs, up to the policy’s dollar limit. Georgia’s insurance office names it as one of the optional coverages. Ask your agent whether your commercial insurer offers it on your vans and what daily amount a wheelchair van rental would need. Business interruption insurance is a separate product, and the business interruption guide covers what it pays.

When the other driver’s limit runs out

Repairs, loss of use, and diminished value all come out of the at-fault driver’s property damage limit. Georgia’s minimum is $25,000 per incident, and a converted van’s repair can use up much of that before downtime is counted.

Your own underinsured motorist coverage can pick up the rest, if it extends to property damage. In J&D Towing, the other driver’s insurer settled for its full $25,000 property damage limit, which covered the truck’s value but not all of the roughly ten weeks the company could not tow. The company claimed the rest from its own underinsured motorist insurer. That policy covered damages the company could legally collect from the other driver. Since those damages included loss of use, the court held the insurer owed it. Business auto policies add uninsured and underinsured motorist protection through endorsements rather than the base form, so read yours for property damage before a crash happens.

What to send the adjuster

Send one written demand with everything attached, and keep a copy:

• The repair shop’s estimate, its dates in and out, and the final invoice
• Rental agreements and invoices, or your log of rental searches if none was available
• The trip report you used as the baseline
• The list of lost trips with broker trip numbers and dates
• Your lost-profit calculation, showing each step
• For a total loss, your replacement search, quotes, and the date the new van started work

If the insurer stops responding, the deadline to sue over damage to property controls how long you can wait. It is two years in Texas and five in Virginia, and the diminished value guide lists four states’ deadlines.

Where the trip numbers come from

The baseline is only as good as your trip records. In HealthRide, the trip log can be saved as a PDF or CSV, listing each trip’s times and GPS-recorded miles. The reports count completed trips with no report to build. When a van goes to the shop, dispatch drags its trips to other drivers on the board, so the trip records show which driver ran each one. See reports.