QuestionQUESTION: Hi,
I went over the past questions and your answers were very informative but I
have another question: a woman pulled out of a parking spot and hit the side
of my car as I was driving through the parking lot, looking for a parking
space. I understand that she should be held responsible since the rules of the
road apply there as well. However, she claims I was speeding, going 25 mph,
so she didn't have the time to see me. I don't think it's true- I might have
been going over 15 mph, but I'm sure she wasn't looking and backed up too
quickly. We exchanged details and I said I'd keep the insurance company out
of it if she would pay for repairs at a friend's shop where he would charge me
very little. The actual estimate is about 3000$. It took her a while to decide
and she eventually declined. It had happened over a month ago, I did notify
my insurance but didn't file a police report. Now I want to turn to her
insurance. My question is: does it make any different that she claims I was
speeding? As to the actual accident, the damage is on her rear bumper and
my doors and I have photos of both, so there's no doubt about that.
Thank you in advance
Udi
ANSWER: Hi Udi,
You are in good shape on both the issue of speed and the question on timing of reporting it to her insurance or to the state on its form.
Speed IS NEVER EVER A DEFENSE TO NEGLIGENCE [except in one limited circumstance, which is not at play here—i.e. where the speeder is seen once and then is hidden (by fog, dip in roadway, brush, etc.) so the viewer would not expect the speeder to pop out as soon as he did].
The reason is: the person whose duty it is to be on the lookout should always be able to keep the vehicle in her view sufficiently to judge its speed, and if she cannot keep it in her view, then she has no business whatsoever in moving her vehicle. That is why we do not rush out of a parking spot.
Next, the delay in reporting the accident is no problem whatsoever. With your damages, you probably should make out a report that is going to go to the DMV or some other agency in your state. Her insurance will take the claim.
If they refuse, you have two choices, depending upon the size of your deductible and the assurance that your company will pursue it for you. First would be to have your own company pay for the repairs. The assurance you need is that they will recover the FULL cost of the repairs, and pay you your deductible.
Second is to sue her in small claims court. That will get them moving at her insurance company. It costs around $40.
As for any worry about your company raising your rates, they cannot do that unless this were an "at-fault" accident. Since it is not in any way your fault, they cannot call this an at-fault accident, and they cannot raise your rates.
I trust that my 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
---------- FOLLOW-UP ----------
QUESTION: 1. I live in California. Does it make any difference?
2. When you say I should make a report, do you mean a police report? Just
walk, report it and they will pass it on to the DMV? Should I bring the
damages estimates with me?
Thanks again
Udi
AnswerHello again, Udi,
Thanks for the very good feedback; I appreciate that. I am going to give you some verbiage to use to describe her negligence.
As for being in California, the rule is the same: when the party who is about to move her car has full view of you, then speed is never a defense to her failure to yield the right of way. She has the ABSOLUTE DUTY to make sure the way is clear, and to proceed with caution, especially in a parking lot where one must back out carefully just for the reason that one MUST EXPECT that the one and only glance she made at the start of her movement WILL NOT BE SUFFICIENT.
She had the duty to keep a continuous lookout for vehicles since WE EXPECT that vehicles will be coming down the aisle, and there is really no good long distance view to be had. Hence, it was her duty to look as she backed out and to turn and look again as she proceeded.
Instead, she just looked once and assumed that the way would continue to be clear all the way whilst she made her maneuver backing. She owed you a duty of care to look again as she moved, and if she had looked, she would have seen you in the lane. Hence, her assumption that one look was sufficient to fulfill her duty to cars with the right of way was WRONG. Her behavior fell beneath the standard of conduct of a reasonable person in similar circumstances, and hence she breached her duty of care to all who would be entering that aisle. She is negligent and 100% at fault here.
Note, Udi: you may want to add in something that explains why you were unable to avoid the accident. If you had paid attention, you could have stopped in time, according to her insurer. The answer to that is she moved so quickly backward that you did not have time to do any maneuver to avoid her. Something along that line will do.
As for the report, call the police and ask if there is a rule regarding filing for private property accidents. Maybe there is no report to be filed. If this had been an accident on the street, then there is a form that the state wants you to complete so they have a record of all accidents. In this case, the value of the loss (damages) exceeds the minimum threshold, which is usually around $750 in damages.
Most people do not fill out the report, and nothing ever happens to them. But the only question is whether or not it is required for private property accidents. Since it cannot be admitted into evidence to prove the facts you would put in there, one does not have a big worry about someone later coming after you by reciting the facts you included in that report.
FYI, besides keeping track of where and how accidents happen, the state also wants statistics on how many accidents involve uninsured motorists. A final purpose for the report is to act as a catalyst for the Department of Financial Responsibility to do their thing if the person at fault has no insurance. The report, plus a complaint from the victim, can serve as the start of a process that will end up with a license suspension for the negligent party if she did not have valid insurance.
That is about all the bases covered for you now, Udi.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Http://www.SettlementCentral.Com
