QuestionQUESTION: My wife (Car A) was driving west on Ventura Blvd. toward Beverly Glen. She
legally went into the center turn lane and proceeded west. There is a
designated single left turn lane ahead, which is protected from the center
turn lane by a curving double yellow line. My wife was past the last area that
was available for an interim left turn into a private driveway/roadway - but
well before the point where the curving double yellow line cuts across the
center lane.
At that point, Car B hit the front right side of Car A. Car B had been in a long
line of cars waiting for movement/light. Well before the double yellow line
curved, Car B - without looking - turned across the double yellow line, while
attempting to get into the center lane. Car B turned into and hit the moving
Car A.It was clear that Car B was attempting to pass sitting traffic by getting
into the center lane, eventually crossing the curved yellow lines ahead - and
proceed to take a left on Beverly Glen from the designated left turn lane.
While my wife had driven past the point at which she could have turned left,
she was well before the curving double yellow lines. Car B intended to bypass
traffic by entering inti the center lane and eventually crossing the curving
double yellow line. But before he got there, without looking, Car B turned
across a double yellow line and struck Car A.
It is likely that the driver of Car B did not have insurance. The insurance
company for the owner of Car B is claiming my wife is responsible for passing
traffic unsafely. She is not a speader. Can you advise me of what is salient and
appropriate. It seems like Car B had multiple violations while trying to get into
a lane he had no right to occupy and with the knowledge that he would be
crossing anther double yellow line visibly ahead. On scene traffic accident
photos affirm the positions of the autos and lane markers.
ANSWER: Hi Bob,
We are both aware that the type of maneuver made by car B, even though illegal, is quiet common in California during peak traffic, as well as in every major metropolitan area that I have driven in during peak traffic.
Insurance follows the car as long as the driver has permissive use.
By even communicating with you, the adverse company is acknowledging that insurance is in effect.
After the accident, each driver made a report to their insurance giving their version of the circumstances of the accident. The insurance company must accept that statement as being factual until proven otherwise.
The on scene photo's will carry some weight but not as much as also having the names of witnesses and possibly a police report.
There are two possible ways to pursue this claim.
If you carry full coverage and the damage is greater than your deductible, you can have your own company repair your car, less your deductible and they will subrogate against the adverse company to attempt recovery.
If you don't carry collision or the damage is less than your deductible, your other recourse is to file small claims court action against both the driver and owner of the other car.
Here in California, small claims court is limited to amounts of $7,500 or less and neither party can bring an attorney to represent them, although each insurance company can "coach" their own insured in advance as to how best present their case. So it will simply be your wife and the other driver presenting their case to the judge.
Your wife can present drawings of the scene and the photos, which will carry more weight with the judge than they carry with the adverse insurance company.
If the driver and the owner both appear and your wife wins the case, the adverse insurance company will be forced to pay the amount of the award.
If either the driver or owner fails to appear, your wife will win by default. Unfortunately, that lets the insurance company off the hook.
Your wife will have to collect the judgement from the driver and owner and the court does not provide any assistance for collecting.
She can file liens against their personal property and possibly garnish wages.
I hope that you find this information to be of help.
Your feedback by rating my answer will be appreciated.
Sincerely,
Bennie
San Francisco Bay Area
---------- FOLLOW-UP ----------
QUESTION: Bennie, Thanks. Your answer was complete and excellent. However, I didn't
focus the question correctly. I am interested in finding our (in your
opinion)what degree of fault each driver should bare. The total damage was
above $7500. Our insurance company (AAA) will cover us (less deductible),
but after receiving information from the other party (but before talking to us)
he made a preliminary finding of 75/25 on the basis of 'unsafely passing
traffic'. I'll copy in the body of an E-mail (without names) that I sent to the
adjustor.
I'm really trying to find out who is responsible. It seems to me like my wife is
getting railroaded. Bennie, thanks for your help. Regards.
Bob
EMail responding to the
Thanks for taking the time to look into this matter. While I don't agree with
your conclusion, I appreciate your taking the time and making the effort.
Also, I gave you virtually everything we had (photos, summaries, diagrams,
etc.), but we never saw information provided to you by others. Joan said that
you were going to go over that with us, but we never got there. Please
forward anything that is relevant. The transmittal letter from AAA is dated
December 11. We were out of the state until December 18 and are
considering a second review as described by AAA. The information would be
helpful and we are under a AAA described deadline.
I suppose that I'm bothered by my perception of the other Driver's actions,
seemingly as follow:
Impatiently, he crosses a double yellow line
He did so without looking
He would have entered an area that he had no business being in (at that point
it was not even a Center Lane - it was an entering lane for oncoming traffic)
He would have eventually crossed another double yellow line (and it was
clearly his intent)
He struck my wife's car
He lost control of his vehicle
He hit another car
He seemingly filled out an erroneous report
He may not have had insurance
It was his intent to pass traffic and proceed toward Beverly Glen.*
Anyway, it seems like a lot to me. The only person responsible for his car to
be straddling the double yellow line in the photos is him - at least that's how
it seems to me. It is the common practice at that intersection in the morning
to link the center lane into the left turn lane. The common practice should
make it desirable to check for other cars. L.A. is acknowledging this by
painting over the curved double lines at similar intersections such as Beverly
and Sunset. If there is something that I'm missing - please let me know.
Did AAA file a Police Report on our behalf ? If not, what is our responsibility
to do so, if any? Please let me know at your convenience. Regards.
AnswerHi Bob,
No, AAA nor any other insurance company every makes a police report for you. At this point in time it is not necessary for your wife to file a report.
The only type of police report that could have had any bearing on this accident is if she had called the police to the scene before the cars were moved and they had diagramed and photographed the scene and taken statements from each driver and any witnesses and then added their own comments and observations to the report.
It appears that from the information gathered by each company that they have reached a decision that each party was responsible for a degree of fault.
Prior to the mid 1970's, California followed the "Contributory Negligence" Law in setttling insurance claims. That meant that you only had the right of full recovery when the other party was deemed to be 100% at fault. If it was determined that the parties each shared a degree of fault, even if it was only 99%/1%, then each party and/or their insurance company was responsible for repairing their own car and had no right of recovery for any amount from the other.
When California switched to the "Comparative Negligence" Insurance Law, then it became mandatory for the insurance companies to investigate and assign and agree upon a percentage of fault for each driver. Under this "Comparative Negligence" Insurance Law, each party and/or their insurance company owes the other for part of their damages and can only collect a percentage of their own damage from the other party.
AAA doesn't 'cave in' for anyone. You can rest assured that if they are agreeing that your wife was 75% at fault, then, based on all the facts they have gathered, that's an accurate percentage.
Since you did not indicate that your wife suffered any injuries, the assigned percentages really will have no effect on the handling and settling of your claim. You stated that you carry full coverage including collision, so the most that you will be responsible to pay is your deductible, AAA will pay the remainder. When they subrogate to recover their expenditures, they will only be able to recover 25%.
If your wife had been injured, she would only be entitled to a settlement equal to 25% of an award that would be be made if she shared 0% fault.
As you recall, back in 1989, California voters approved proposition 103 to change the methodology that insurance companies use to determine rates. This has been a slow, cumbersome process, but as of 01-01-08, it is my understanding that every insurance company operating in California was in full compliance with proposition 103.
Proposition 103 was written to lower the rates of "good" drivers and increase the rates for those who do not qualify as good drivers.
Two factors will cause your wife's rate to increase for the next 7 years. The increase will be the approximately same amount for the first 3 years and then reduced drastically the 4 the year and slowly each year thereafter through the 7th year.
California law has established a threshold where an accident is considered as a 'fault' accident for insurance rating purposes if the drivers portion of fault exceeds $750. This will cause the greatest increase in your insurance rate for the next 3 years.
Proposition 103 demanded discounts for good drivers based on YAF (Years of Activity Free Driving) up to 7 years. Your wife will now lose that discount, which is the same as having a rate increase, and slowly re-earn the discount one year at a time for seven years.
I clearly under your frustration based on the actions of the other driver, but two experts from two different companies have thoroughly reviewed all the salient facts and agreed to 75/25.
I could not form an opinion as to degree of fault without having all the on scene schetches, photo's and drivers statements plus any witnesses statements in my hands, and then it could take a full day to review. The claim would then still be handled on the basis that I have described above and you would still have the same increases in the cost of your insurance.
The insurance companies started implementing some of the changes demanded by the passage of propisition 103 in about 1992. Prior to then, I could quote and write an insurance policy for any age driver, any vehicle, any combination of coverages and apply all discounts for the 4 major bay area counties from a 1/2 thick stack of paper.
After the first implementation of proposition 103 in 1992, I had to use a computer to determine rates because if proposition 103 changes were put on paper, I would have needed a stack 3 feet tall for each different set of circumstances and each car.
I hope that all this information better helps you understand the handling of your wife's accident and it's impact on your insurance costs for the next 7 years.
Your feedback by rating my response will be appreciated.
Sincerely,
Bennie
