QuestionQUESTION: I was involved in a parking lot fender bender. The police dept. came investigated the scene and upon written accident report showed the other party at fault. The report showed i did nothing to cause the accident. There were no eye witnesses. The other parties insurance company denied the claim i initiated due to no eyewitness, saying the they do not give much weight to the report. I have a small claims case coming up and predict i will win. If i get the judgement can i then force the defendant's insurance company to pay the judgement?
ANSWER: Hello Patrick,
Good for you!
No witnesses = no payment? Really. I'm pretty sure that lots and lots of claims are settled with no independent eyewitnesses!
Seriously, as you have well figured out by now, they have a duty to actually investigate claims. That was not done here. Here are some normal steps that should have occurred. First, examination of vehicles, contact police officer for additional information, examine scene, full statement from both drivers. Next I will assume that their insured driver is denying responsibility. If, after a complete investigation of all available evidence, there is no evidence to deny the insured's account, then they would be responsible to believe their insured. However, simply choosing to "not give much weight" to a police report is absurd. Why not? Did they speak to the officer? Granted, he was not a witness, but there must have been some evidence on the scene for him/her to make a determination. Was this considered? Did someone visit the scene, examine photos, etc that specifically contradicted the officer's findings?
As to your actual question, yes the insurance company must protect their insured. If there is a judgement against that insured, the insurance company is obligated to pay damages according to the terms of his/her policy. You shouldn't have to "force" them. They should be defending the claim, or at least offering to settle.
Gather all evidence that you can including damage photos, police report, police officer (if you can) and photos of the scene. You are going to have to prove that the accident was the responsibility of the other driver. You cannot simply assume the judge will take your side.
Good luck.
Jane Pytel
http://InsuranceExpertAdvice.com
http://SolutionsForYourInsuranceClaim.com
http://FloridaAutoInsuranceCentral.com
---------- FOLLOW-UP ----------
QUESTION: Jane,
thank you very much for your answer. The lady who hit me in the parking lot told the officer one story (she said she didn't see me before she hit me) and told her insurance company that we backed out at the same time and hit simultaneously. I sent a certified letter to State farm with a copy of the police report and the trial docket showing their isured as being a defendant. I asked them to send me her statement to them, as to the events that occurred. I gave them 5 days to answer upon receipt or i would subpoena the information from them. My question is since they are in Atlanta, Ga. (State Farm) and i am in North Carolina, would i have the right to subpoena this statement? I am trying to catch her in a lie or at least expose both stories told, to impeach anything she could say in defense.
Answer Hello again Patrick,
You haven't actually told me what did occur. But here's the point. The other driver's stories are vastly different and would certainly have a direct impact on a claim. If she simply did not look when she backed out and you were already in her path, if this could be proven it would certainly point to her liability. On the other hand, if you both backed out at the same time and struck one another, both of you would be responsible. Again back to the not looking part.
The problems with these type of accidents is that they are very difficult to substantiate. Really, the only way to substantiate what occurred is for the officer - or photos - to observe the rest location of both vehicles post impact. In other words, if you were completely out of a parking space and she just backed into you, clearly she had a duty to avoid you. If both of you were equally out, meaning both of you backed out at the same time, the evidence would certainly suggest that you are equally responsible - for not looking. Not looking, of course, is never a defense for an accident.
Now, if she told the police that she simply did not see you (because she was not looking) then certainly it would be the responsibility of the adjuster to investigate further and in the manner I discussed previously. If she gave them an account that differs from the police report, then they need to ask her why and they need to complete an impartial investigation to resolve the issues.
The point is, this could be a difficult case to prove. I trust you are prepared to present actual evidence that will support your position. As for the statement, I can tell you with reasonable certainty that her insurance company will not release it to you - at least not voluntarily. Their duty is to protect her, not to incriminate her. The question is whether or not they are actually defending her.
As to whether or not you can or should subpoena it, and if you can do so across state lines is strictly a legal question. You will need to consult an attorney for those answers.
As an insurance person, the best solution to your problem would be, in my opinion, a collision claim with your own carrier. Then let the two insurance companies fight it out, subrogate, whichever is appropriate. Seems a lot easier than engaging in a court battle, especially across state lines.
I do wish you luck. And, I suggest you consider the cost-effectiveness of Collision assuming you do not already have it.
Best regards,
Jane Pytel
