Auto Insurance Claims: Comparative Negligence Issue, personal injury insurance, personal injury insurance claims


Question
QUESTION: Hi, you have 27 years of front line plaintiff’s trial lawyer experience in personal injury insurance claims. Can you answer a question about defense skills?  In a state adopted Proportional Comparative Fault at 50%, how can a plaintiff effectively deny a defense attorney charges the plaintiff with negligence if the defendant (the at fault driver) was ticked by failure to yield? Thank you for your answer.

ANSWER: Hi Ryan,

A police officer CANNOT testify as to who was negligent; hence her decision as to who was at fault is irrelevant and NOT ADMISSIBLE IN EVIDENCE.  The fact that the defendant was issued the ticket and that he paid the ticket are not admissible in evidence.  

A police officer is instructed to issue a ticket to the one she feels is most at fault for each accident, and she did that in your case.  But her decision is based upon inadmissible hearsay evidence she gathered by speaking with some or most of the witnesses.  

That means she listened to "facts" given by others who were not then subject to cross examination.  This would be you and other witnesses.  

A witness -- be it police or civilian -- can ONLY testify as to what she saw and heard, and she cannot testify as to what someone else told her (unless it is used to impeach the testimony of the speaker, who may have testified at variance to what he told the officer).

So, she can testify as to where the cars were located, the skid marks, the injuries she could see, and of course, the statements of the participants, BUT ONLY IF used against them at trial.

Of course an expert witness is allowed to give his opinion.  Hence doctors, engineers, accountants, etc often testify as to their opinions personal injury claim lawsuits.  But in this instance, the police officer is not an expert, and hence her opinion is inadmissible.

Don't get spooked out by this allegation made against you.  It is ALWAYS AN INADMISSIBLE ALLEGATION -- nothing more.  It is common in auto accident claims for both sides to make allegations that may be stronger than the evidence they are holding.  Kind of like bluffing at cards.  The attorney's assertions DO NOT MEAN A THING.  Your attorney will rebut them and cite the facts that supported the officer to issue a ticket in the first place.  No worries.

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


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QUESTION: In the most cases there are no winteriness. The police opinion is inadmissible on the other hand, as you said. I see the most defense lawyers like to use the allegation of negligence to against none fault driver after the offer was rejected and the case has to proceed to the trial. Can you tell what evidence or stronger allegations may prove the accident was clearly someone else’s fault in the failure to yield case or it will become hard to proved it unless there are winteriness?

ANSWER: Hello again, Ryan,

Please forgive me if I got your question wrong inasmuch as parts of it make no sense.  I presume that you mean no witnesses.

As with any case, it will go on the evidence.  Evidence is demonstrative, such as a photo of the vehicles, or testimonial, such as each party testifying.  

As to who will win, it will depend upon the credibility of the party testifying.  

Photos of the intersection, or print-out from googlemaps or wikimaps are VERY USEFUL for the judge.  I would print out one of those and mark the location of the vehicles in scene #1, #2, and #3.  

Make drawings.  Take photos of the car and mark where the damage occurred.  That could help to show who had his head out in the street first.  

Best wishes,

Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com

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

QUESTION: How to claim if both parties are fault?

Can you answer an additional question? If both parties were 50% at fault in the states where the proportional comparative fault at 50% adopted, can the both parties still file claims with the opposing insurance to pay 50% damages or both parties cannot file any claims with any insurance, meaning only pay from their own pockets assuming both parties have the liberty coverage only? Thank you for your answer.


Answer
Best to call your insurance commissioner in your state since some do not allow a suit if you are at 50% and others allow a suit at 50% but not at 51%.  And many allow a suit no matter what the negligence on the part of the plaintiff.
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