Auto Insurance Claims: I am being put at fault when I should not., I am being put at fault when I should not.


Question
Car damage
Car damage  
QUESTION:  On May 10th, I was involved in a traffic accident. While on the left lane for a left turn, I was yielding to oncoming traffic on a solid green light. I moved my car up within my lane into the middle of the intersection to prepare for a turn. An oncoming car in my opposite direction was coming at a questionable velocity when he got too close to my vehicle and clipped my front drivers side and then lost control and hit an island and the car behind me as well. The witnesses are very unclear in what they saw, but the driver behind me claims that I was "just ahead of him". However, he could not identify the position of my car, and as far as I know, he does not claim that I was moving left already.

The report concludes that it was my fault on a very vague description from a pedestrian witness who claims he saw me starting to turn left. This is, however, false, and I do believe the witnesses behind me may attest to that. There is also substantial evidence aside from the witnesses that are primarily in my favor. The physical nature of the incident, for example.

The report also has an extremely unclear and rough sketch. However, it is clear enough to see that if I had began to turn left, and keeping into consideration the island that separates the sides of road, I would have been struck on either my front side or my front passengers side, which is virtually intact. The police report is also very vague and many good questions that may have been key to the case are not asked. Neither officer at the scene ever took a look at my car, and simply asked me where my damage was. I had no apparent injuries at the time, but since the incident I have had some back discomfort.

My insurance is doing very little in terms of my defense. They have ignored most of my concerns and are currently trying to put me 100% at fault. They are not doing anything to evaluate the scene, and although I have offered photographic evidence of the scene and of my vehicles, they have ignored my offers. I am still waiting for a call to be returned. They told me that my only other option would be to take the matter to court.

Pictures of my car are available and my car is still undriveable. This incident has caused me much stress in a time where I have been preparing for finals at my school. I am also unable to travel anywhere easily, and have no other mode of transportation besides public transportation. Solving this situation, or at least bringing it a step closer to ending it would be a blessing. I am currently under liability insurance, and I don't think that the coverage that I have (essentially the only one I could afford as a college student paying on my own) covered 100% of the damages of the entire incident. It is my understanding that I may be sued for the rest of the money, but what occurs if I don't have enough money to pay it? I don't want to resort to these terrible thoughts, but I must prepare myself for the worst case scenario in which I cannot prove myself.

Thank you very much, and I hope to hear from you soon.

ANSWER: Hello Ernie,

Your insurance company has a duty to advocate for you. They must be on your side an help you defend this by doing a complete investigation (contacting witness, looking at physical evidence, taking statements, doing scene investigations, etc).

There is however one caveat, the insurance company has the right to settle the claim as they believe fault should be apportioned. Please see: http://www.auto-insurance-claim-advice.com/Right-of-Settlement.html Most auto polices outlined their right to settle as they see fit (basically), so you might have a problem there.

In addition, your facts are indeed against you. I understand what you are saying but the bottom line is that you are making a left in a solid green and not an arrow green, meaning that you must yield the right of way. The duty is on you and per the picture, it really looks like as if the front of your car was sticking out. I know this is not correct as you are stating that the other vehicle came towards you.

However, remember that in court it is not what happened but what you can prove happened. With physical evidence against you (your point of impact and your duty to yield) you can be held liable.

you can argue that you are not 100% at fault, but some other % (50% or something like that), this would affect your claim and might give you rights of recovery for your own damages and injuries, depending on your state law. Please see: http://www.auto-insurance-claim-advice.com/State-Accident-Law.html

You can contact the department of insurance of your state and ask them how to compel your insurance company to do a better investigation. They can help you with that.

If you are at fault, then your policy should cover 100% of your damages up to the amount of your limits. Usually, limits are not an issue unless you have caused a lot of damages to the other party (and injuries). Check with your adjuster to see if your limits are at issue. If they are, contact a lawyer.

If you do not carry collision and you are at fault, then you will have to pay for your damages out of pocket.

I hope this helps,
Anne
http://www.quirogalawoffice.com/

---------- FOLLOW-UP ----------

QUESTION: Thank you for your quick response, Anne.

I do believe that the physical evidence is in my favor, however, you are right, the actual amount of evidence is questionable. I am going to try to compel my insurance company to do a better investigation. From speaking to a lawyer, I did learn that my insurance company actually does this kind of thing quite a bit, and they typically aren't much of a fighter unless the evidence is completely in their favor.

My follow up question is that if the property damages are, lets say, 8000 on top of what my current coverage, then a lawyer should help me negotiate a settlement plan?

To be more specific, in the accident, the other cars involved were a 90 Mitsubishi Eclipse that was pretty old, and probably not worth too much. However, the car he hit after he hit me was a 2008 Yaris. If they hold me liable 100%, then I'm assuming I would have to cover the Yaris as well, which is quite expensive. If I was able to fight and maybe get a better % of fault, would this be taking into account TOTAL damages of the incident?

Also, how bad or good of an idea would taking the driver to small claims court be?

Sorry if I'm asking a lot of questions, but hopefully you can find some time to respond as soon as you can.

Answer
Hello Ernie,

I will answer some of your questions. You mentioned you have an attorney, which you are probably better off talking to.

The issue here is that I do not know in which state you are. I am assuming your are in California, but if you are not, then this might not apply (this will apply to pure comparative negligence states).  

Here is your situation, if you are 100% at fault, then you will have to pay all damages of everyone (which you already know). Your  insurance company will have to settle within policy limits if possible. In other words, try to get a release of all claims against you in exchange of payment (best case scenario for you).

If however, say your are 90% at fault, then you and the other vehicle are jointly and severely liable with rights of contribution. What this means is that the 10% at fault vehicle may have to pay 100% of the damages of the 0% at fault party, and then come back for contribution (which would be your insurance company), if your insurance company has maxed out the limits, then after you. However, if you have no assets and really cannot pay for this, it is likely that the other insurance company write it off. Some will send you to collections and they will set up payment plans.

It really depends on which state you are, but the best thing for you is to ask a local attorney.

Good Luck,
Anne
http://www.quirogalawoffice.com/