QuestionI was involved in a accident on my motorcycle. The other driver who was driving a car was at fault and was giving a ticket. I was injured during the accident. Her insurance company is stated that she is at fault 60% and I was at fault 40%. She tried to file a claim a week after the accident with my insurance company and now she has a lawyer, but she was not injured. How if the accident is her fault and she was giving a ticket will her insurance not pay 100%. So now I will have to file a claim with my insurance company because my motorcycle is probably totalled. What should I do. I thank you for any advice. James
AnswerHi James,
Insurance companies are increasingly trying to screw over injured claimants by claiming that THEY, THE INNOCENT VICTIMS, were partially at fault. In terms of comparative negligence, if they can get you, THE INNOCENT VICTIM, to agree to even 10% to 15% liability—“just to settle”—then think of how many millions of dollars the insurance industry retains from this immoral practice.
And yet we have conservative politicians, including our President, crying tears for the insurance industry and touting so-called tort “reform” in every state and nation-wide. The reason why the insurance industry made $60 BILLION in 2006 is because of immoral tactics such as they are trying to pull against you. Only the trial lawyers fight for the rights of THE INNOCENT VICTIMS.
You are right to fight them, and I will help you in whatever way I can to make sure that you do not fall into this trap that insurance adjusters are trying to spring on THE INNOCENT VICTIMS in recent years. I am going to give you a lot of my time to set you on the right road, armed with information to fight the insurance adjuster.
FIRST, let’s agree on one thing. Anytime you get notice of a claim against you and that the other side has an attorney, YOU MUST notify your own insurance carrier ASAP. This is NOT something you want to try to handle yourself, and since you are not at fault, your insurance premium CANNOT be increased.
SECOND, let’s also agree that the ticket handed out to the other driver is useful most of the time in ascertaining fault, but in fact, the officer’s opinion of fault means NOTHING in court. It is NOT even admissible evidence of fault inasmuch as the officer was not a witness to anything, and her opinion of fault IS NOT ADMISSIBLE inasmuch as it is based upon hearsay evidence of the people involved. Hence, both drivers are free to dispute the opinion of the officer.
Now that you understand how they can go against the ticket as a conclusion of negligence, let’s get to work proving the negligence of the other side. Didn’t the adjuster tell you why they thought that you were nearly half at fault? Attack that conclusion with your own facts. YES, by all means DO CITE the fact that she got a ticket for violating the rules of the road. But stand firm in fighting any assignment of negligence against you.
THIRD, let’s look at the most misunderstood defense that adjusters try to use: excessive speed on the part of THE INNOCENT VICTIM. It usually is raised as a defense by the tortfeasor’s adjuster in the following way: “The excessive speed of the motorcycle deceived her and she cannot be held totally to account for this accident; that motorcycle driver must also be held to account since his excessive speed was the real precipitating factor in this accident.”
There are only a few ways that you could be negligent, and you ought to be able to fight them, WITH ONE EXCEPTION: the allegation of excessive speed. That exception is when the other side is saying you are partially at fault because you were speeding and your speed deceived the other driver such that she was not able to make a reasoned choice. Hence, they will claim that you are partially at fault. If this is their game, then please write to me again and I will let you know how to defeat that claim.
In brief summary the allegation of excessive speed as a defense (i.e. she says that her defense to pulling out in front of you was your excessive speed fooled her) is ONLY VIABLE in ONE circumstance. And that is if there is a point where she can see you, then because of a dip in the road or some obstruction such as vegetation, you are hidden from her view for a bit, but then you pop out into plain sight just before the accident. Hence, your speed can then be used to explain why she failed to yield the right of way.
But that is the ONLY case in which excessive speed can be used to explain away the tortfeasor’s failure to yield. If she could have seen you with unobstructed sight lines for thirty or forty yards, then she just CANNOT use the defense of excessive speed because the law says that she MUST keep a vigilant lookout before she pulls out into traffic. And she is under the burden to make sure that it is safe BEFORE she ever starts to move her car.
FOURTH, let’s give you some basic information on how to present your personal injury insurance claim using http://www.SettlementCentral.Com free legal information. Learn how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS. Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
You will be making the claim directly to her adjuster: learn how to do it and gather the facts and GO FOR IT without any compromise on fault (assuming of course that you were not at fault).
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.htm
FIFTH, let’s consider when to settle your personal injury insurance claim. DO NOT SETTLE YOUR SOFT TISSUE PERSONAL INJURY CLAIM TOO SOON. "Deep" soft tissue injury can be lit up months after ending treatment. Wait until you have gone through your summer season with all of its physical activities. I am always afraid when a third party adjuster is hounding you to try to get an early settlement.
I know your motorcycle was hit with some pretty good momentum. And, of course, that trauma was passed along to your body, where the soft tissue injury was likely DEEP.
What that tells me is that your body may not have had sufficient time to show that it is injured. But pay attention to it. I am worried that if you were to go through even half of your summertime outdoor activities, you will start noticing pains at night or the day following physical activity.
Even now there may be a dull ache at night following some physical activity or pain the next morning. In this case, I would first give yourself a thorough self-examination to see when you recall the little nagging pains in your neck or back. I would see a doctor about those ASAP. It is not too late. Do not go to the ER inasmuch as they will not do a good job on soft tissue injuries. Instead, use your own insurance Personal Injury Protection (PIP) and go to a chiropractor.
There may be a dull ache at night following some physical activity or pain the next morning. DO NOT LET LITTLE PAINS GO UNATTENDED SINCE YOU DO NOT KNOW WHETHER THEY WILL CONTINUE OR GO AWAY. We all hope and believe that such little pains will disappear soon. But on the other hand, we have no way of knowing since this is the way serious soft tissue injuries can behave.
So, when this happens, even if a couple months or more post-treatment, do not hesitate to SEE A DOCTOR AND ATTRIBUTE THE PAIN TO THE ACCIDENT WITHOUT EQUIVOCATION. It is NEVER TOO LATE TO REPORT PERSONAL INJURIES FROM A CAR ACCIDENT http://www.settlementcentral.com/page0104.htm
According to Our http://www.SettlementCentral.Com Members, Chiropractors are Most Effective in Severe Whiplash and Soft Tissue Car Accident Injuries http://www.settlementcentral.com/page8010.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
"No medicine: no money"; medical costs increase worth of personal injury insurance claims http://www.settlementcentral.com/page0045.htm
Here is another page from my website that shows in detail why you should never make an early personal injury insurance claims settlement http://www.settlementcentral.com/page0211.htm
And, of course, once you settle, that is it: no one will be there to pay for your future medical or chiropractic care; nor will you ever see another dime in pain and suffering money. By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
FINAL TOPIC: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
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
