Being a lurker and future M5 owner I will say this, reputation and business has a fine line that everyone tries (or should I say most try) to walk on. You can be on one end of the extreme and give the shirt off your back to help out a customer, be the "Yeah, I like that dude" and end up broke. On the other end you basically stomp on heads to get where you want to go without and regard for those you've pissed off to get there.
The key is finding that middle ground. In this case the general consensus is that the dealer is no where close to middle ground. But if the dealer can live with that then there is not much you can do but let the legal system get you what you can.
see this is what im talking about, the first dealer said it was 2500 in damage, the OP said the 2nd dealer said it was much more damage, but the car is worth in the low 40k area so you would need probably 30k in damage to total it!!!
Your other post was better.
Actually, this "total" damage is impossible to know without having information from the insurance company. Some total when the damage is 51% of ACV and others require it to be as high as 80%.
About five years ago, I made an enormous mistake with a client. Bad. Legal liability and everything. The moment it happened, I called them, explained everything in depth, apologized, took full responsibility, and asked them to come back to me with what they thought was right. When they came back, I took their demands and I doubled it. Then I wrote a personal letter to everyone involved. Probably cost me $30k to fix that mistake.
Why not call the guy when it happened. Apologize. Let him see the car, the accident site and the offending driver. Offer him a replacement CPO'd car, same or fewer miles, same or better options, same condition or better. Even let him pick the color and add an option or two and back it with a 100k full warranty and your personal cell phone number. Then send him all-expenses to the two-day performance driving school, give him $1,000 in lifestyle gear, two logo jackets, and send flowers to his wife. Polish it off with a handwritten note. Why? Because:
1) 20,000 viewers would admire you instead of despise you
2) With lawyers, it's going to cost you that much anyways. If you are lucky. Not including lost business.
3) That's what a man does. He owns what he sells, and takes full responsibility when it goes sideways
Get a top notch lawyer....don't even talk to them, the lawyer will sue for personal grief, and lots of other stuff....you want a NEW CAR...or you will sue for 1/2 million, no less....you will get a brand new car...REMEMBER GET A GOOD LAWYER and the dealer pays for the Lawyer...this is a slam dunk case...write down EVERYTHING wat people say the police say EVERYBODY doucumentation...or you have NO case...Period.
I can't comment as to the amount of damages but you should absolutely contact a law firm with experience in property damage and automobile cases and get the ball rolling as soon as possible!
...too bad this wasn't in NY state, I'd have taken the case.
Personally, I too think asking for a brand new 2010 M5 is a bit over on the greedy side. However, I dislike the posts from the folks who work for/in dealerships. They're single perspective and protective for their own benefits. IMO, I'd ask the dealership to buy the M5 by paying me the current value of the car, and some compensation for the inconvenience(or provide a loaner would be an alternative).
I think at this stage there won't be a firm law suit case, if the means of the suit is for huge amount of compensation or perhaps a new 2010 M5. Thus far the dealership's behaviors can only be described as unethical, and you really can't get much $$ off that in a law suit.
There is a rich friend of mine who owned an Austin Martin DB9. He lives in a smaller town that has no AM dealership within 300 square miles, so he uses a local European dealership for oil changes and etc. One day he got a phone call from a friend, who claims he saw his DB9 crashed on the side of the road. He was having lunch with two of his friends regarding his tax problems (did I mention he is rich?). He drove there, and found the front end of his DB9 no longer exists. There are two gentlemen there from the dealership awaited for the tow truck. This guy, is full of two things: money and temperament. He immediately went up and shout at the dealership manager, who claimed just gotten there himself. The GM claimed that he doesn't know what's going on, but will "get the car back to to dealership and take care of it". The next 5 minutes was the usual things: he shouts, and the GM just had a polite and ignorant smile on his face. My friend, who started to get pissed off (well, he's been in the pissed off mode just about his entire life) started getting "physical", and the GM got rude himself and told him "if you touch me again I'll have you locked up, and I'll not tell you a thing unless your lawyer is here. The GM also did not allow the other person from the dealership to talk (apparently a technician). The funniest thing was, he was having lunch with his accountant and his attorney, and both of them were with him at the scene. So his attorney refused the tow guy to touch the car, and got the police there. Because the GM refused to tell him what happened by claim he doesn't know anything, his attorney asked the police to detain the technician who seems to be the driver for larceny. The attorney said that it's a possibility that the dealership employee tried to steal the car, because he obviously did not have the consent from either the owner or the dealership to move the car away from the dealership. Police did not make an arrest, and the attorney probably knew that. What they did was to talk to the witnesses around for statements, and a guy from the nearby gas station told the police "both of them were in the car, and he remembered the GM was the driver." This completely destroyed the smile on that GM's face, and they started talking. They claimed they were just testing-driving it after service while they get lunch(police found to-go Chinese food in the car). That was the GM's fatal mistake. The owner of the dealership fired the GM because "he was joy riding a valued customer's car for personal use during personal time (lunch break)" The dealership bought his DB9 for 15% higher than the market value, plus a top-of-line loaner car for over 10 weeks.
Another fine reason to take your beast to a trusted Indy... My local BMW stealer only had to mess up my former E46 M3 once for me to figure that out... . My car damn near burnt to the ground because of a mistake... more like "incompetence".
Many unknowns here too many to speculate...
ie: is Car owned or leased??....if owned is there paper out on the car???...
with that said....the car being totaled is determined by the insurance carrier..in this the dealerships...not the car owner nor the dealership themselves....
don't know if it is a universal percentage..or if it varies from carrier to carrier...but in NY my carrier Adirondack..totaled my M5 because the repair costs were greater than 75% of the value of the car.
all that aside I hope that the OP prevails to his satisfaction!!....
Everyone, make no mistake...I gave and am STILL giving the unnamed dealership every opportunity to make the situation right. I gave as many suggestions I could as to how this situation could be rectified. As soon as I wanted a second opinion from another BMW dealership, I was immediately told they were going to hand it over to their insurance. The crash dealership made no suggestions as to how they would make me whole other than to fix it their way and give me a loaner. Looks to me like the $2500 deductible was all they could stomach to lose.