QuestionHello I was recently involved in a car accident which it appeared to be my fault, I was performing a U turn and was struck from behind on a four lane rd. The accident from what I could tell was minor, my car sustained most of the damage with a blown out tire and a busted rim. No police came, no police report was filed. While exchanging information I told the other driver if at all possible I would like to pay out of pocket. As fare as I could tell she had a busted headlight and some paint of mine was on her bumper. Last night her insurance company contacted me and said she filed a claim and I needed to do so with my insurance because of the cost of the repair. I then asked about the estimate and they stated that they didn't have an estimate yet but insisted the cost was going to be sky high to get it fixed. Granted her car is a late model domestic car. Before I got off the phone they said my insurance would have to pay her deduct as well as for the repairs.
So my questions.
1.) Can her insurance file a claim with mine even if that not what I want to happen?
2.) Do get to choose how I want to pay for damages?
3.) Am I entitled to ask for more then one estimate?
4.) Why do you think she filed a claim with her insurance if I was at "fault?"
5.) Since I was struck from behind could I file a counter claim?
AnswerHi Chris,
Please take no offense at my assigning labels to you and the other driver: it is the best way to speak clearly about your question. I will call you the "tortfeasor", since you are apparently the major cause of the accident; and then the other driver will be identified as the "victim". OK? Here we go then.
Many tortfeasors think it is best to handle small damage claims on their own, rather than risk an increase in their insurance rates by turning the claim over to their insurers. For the most part, this kind of thing just does not work out too well for the victim.
These victims find that the tortfeasor wants to negotiate the damages shown in the auto body estimate, or to make the victim go for another estimate. These victims find that the tortfeasor wants to negotiate liability. These victims find that the tortfeasor wants to negotiatge the payment terms ("I can't come up with all of that this week, but I can do it in two payments—one now and the other at the first of next month.").
Hence, the victims often just tire of this game and turn the claim over to their own insurer. I have no idea what your victim was thinking. MAYBE she has some minor injury and she wants medical payments to start so she can see a doctor for treatment. It is more likely true than not that even light trauma can trigger soft tissue injury.
You can see from your questions #2, #4, and #5 above that YOU are already falling into that pattern I described above. To-wit: you want to make the victim get another estimate, you want to negotiate how your payments will be made, and you want to discuss liability. THESE, then are some of the very reasons why a victim says:
"NO", I want this handled professionally; it is NOT in my interest to diddle around trying to save this tortfeasor an increase in his premiums. HE was the cause of this accident; why should I inconvenience myself just to save him a couple of bucks?"
Let me go through your questions, Chris:
1.) Can her insurance file a claim with mine even if that not what I want to happen?
ANSWER: NO. They have NO RIGHT to file any claim with your insurance IF you show that you are ready, willing, and able to pay in the same fashion as your insurer would. They would prefer to deal with the opposing insurance, but in fact if you demonstrate financial responsibility, there is no reason why they can require you to use your insurance.
2.) Do get to choose how I want to pay for damages?
ANSWER: NO. If you want to handle this on your own, they you must be prepared to make your payments once the amount owed is agreed upon.
3.) Am I entitled to ask for more than one estimate?
ANSWER: NO. The victim can take her vehicle wherever she wants for repairs. If you challenge the amount, then take the estimate to your auto body shop owner and let him have a crack at reducing the estimate.
4.) Why do you think she filed a claim with her insurance if I was at "fault?"
ANSWER: See above explanation. The vast majority of victims have no incentive to make accommodations to the tortfeasor just to save him a few bucks. Why should they?
5.) Since I was struck from behind could I file a counter claim?
ANSWER: Depends upon the facts. Was she at fault, even partially? Let's say that you were slowing down to make the left turn part of your "U" turn, and you were hit then. There would seem to be plenty of liability on her part for hitting you. She has the duty to slow and allow you to make your turn.
On the other hand, if you had already made that first part of your left turn and you were now starting on the backside of the "U", THEN it is a different question because now you are going to try to enter the lane of travel where there is already a vehicle that has the right of way.
How can you justify entering that lane of travel when her vehicle is clearly there to be seen by you? This sounds like 100% liability on your part, doesn't it?
BUT, wait a minute: what if her vehicle was not there to be seen, or what if you were unable to judge her time for arrival at that spot—having a glimpse of her car and then it went out of sight (behind brush or a hill, etc.)? AND, what if you DID in fact fail to yield the right of way, BUT STILL she had the last clear chance to avoid the accident IF ONLY she had been exercising due care and caution. In other words, what if it could be said that a reasonable person would have seen you and been able to slow and to avoid the accident? In THAT case, you CAN in fact make out a case against her for comparative negligence.
Here is what I would do:
#1. e-mail the adjuster and let her know that you intend to stand good for the damages and that you do not wish to go thru your own insurer.
#2. Get some idea of the amount of the damages via an estimate. Maybe it is too high to warrant your paying directly. Don't forget that you can take that estimate to your own auto body expert to see if there is any chance of a meaningful reduction in cost. BUT of course that does not mean that the victim has to buy your guy's explanation. You are NOT in a strong position to negotiate.
#3. Inquire as to any minor injury she may have. ANY injury takes you out of the picture, since the costs will be higher than you want to deal with.
#4. If you were to stay involved and if you eventually do reach agreement as to what you will pay, DO NOT accept a release of only the property damage. YOU MUST USE A GENERAL RELEASE THAT INCLUDES BODILY INJURY LANGUAGE—that is the only way to protect yourself from a future claim for injuries. If in fact this turns out to be how the case is going to be handled, then you are welcome to write to me at my website (below) and ask me for a general release form. Tell in your message that we met here at allexperts.com so your message is not treated as spam. I will get back with you AND send a release that you can use.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
