QuestionDear Sir,
Because of financial hardship, our insurance coverage lapsed three weeks ago. We were to pay it when I got an expected check this week; however, this morning I was in an accident in the parking lot of my condo. There was a witness who states, and signed, that the cab driver that impacted me at a fast speed was not looking at the road, but at the witness. I was backing our car out perpendicular to the lot entrance, and although I looked left right rear I didn't see the cab, because I was boxed in by a truck on my right. The entrance to the parking lot was about 50-100 feet from where I was backing out. The cab impacted me with such force and came in the lot so fast he spun my truck 90 degrees. The police thought it was a head on collision because of the position of the vehicles, but I didn't move the car. Because I was backing out the police said it was my fault. When I called my insurance company to see if I could get a rental car to get back and forth to work until my car is repaired, they told me my coverage had issues. I went online and determined I'm not covered. This is Sunday and I'll have to speak to the adjuster at my insurance company (The Gekko) tomorrow. The cab company insurance company was not open at all on Sunday. Further my insurance company (where I am lapsed for 3 weeks) said by Maryland law, its the fault of the person backing up to stop. What recourse do I have? I think that the cab company driver was negligent. I am a little sore, but don't think that I have a case for a lawyer on medical grounds. Also, my 10 year old daughter bumped her head in the back seat on the glass, but the paramedices in the ambulance said she was just shocked and shaken. What can I do? I want to persue damages with the cab company to pay for my truck. I am already in a hole financially which is why my insurance lapsed the past 3 weeks, so I can't skip work. I don't think that a lawyer will persue the case if there is no injury per se. I just want the cab company to pay for damages for my truck.
AnswerDear Dee,
There are six issues or aspects we need to explore in order to answer your questions.
1. We can probably dispose of the first one right off the bat. Is there any way you can claim that you had any confusion about the cancellation date of your insurance, or is there any claim that you had mailed the check for your insurance or deposited it in their night box? If so, then write to me again with those facts that support such a claim and we can go from there. Otherwise, we will assume that there is no way to get your company to agree to coverage for this accident.
Next we have the five remaining issues of:
(2) Who is at fault?
(3) What is the effect of the police report or the state statute regarding backing up?
(4) Does your state permit comparative fault?
(5) Can you make a claim for personal injuries sustained as a result of the negligence of the cab driver? and
(6) What should you do about their claims versus you for property damage and your desire to get your truck repaired?
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2. Who is at fault in a backing up accident?
I think the other guy may be mostly at fault here, but I suppose the adjusters will no doubt claim that you bear all of the blame. In the first place, irrespective of what is parked on either side of you, behind you, or anywhere, that may be partially blocking your view, IT IS THE DUTY OF THE PERSON BACKING TO YIELD TO ALL OTHER TRAFFIC.
Thus, they might say it is entirely YOUR FAULT since that cab driver will say he was underway as you started toward him. If they even TRY to pull that one on you, point out that YOUR CAR WAS HIT SO HARD THAT HE SPUN YOU AROUND! Add in the fact he was inattentive by looking at the witness, and that should be more than enough for this adjuster to see that he is partially at fault since once you were visible to him in the aisle and HE HAD A DUTY TO SEE YOU AND TO AVOID THE ACCIDENT.
YOU HAD THE RIGHT OF WAY, and The second part of the question here is whether or not the other driver was not mostly at fault inasmuch as HIS OWN ACTIONS WERE MORE THE CAUSE OF THE ACCIDENT than was your mere backing up.
You had already established your position. You were clear to back partially out and you did so with due care and caution. You cannot be charged with a duty to see a person who is speeding through the parking lot, as this driver was.
Tell them that he also has a duty to other drivers on the parking lot roadway. First, he has to pay attention so he can see what is there to be seen. This was a duty he owed to you, even if you were the burdened vehicle. He breached his duty of care to you by looking elsewhere and thus he was not able to see you in time to stop.
He had what we call the “last clear chance” to avoid the accident, but because of his neglicence in inattentiveness and excessive speed, he was unable to do so. And hence he did breach his duty of care to you.
His excessive speed is shown by the great impact. You can get a qualified accident reconstructionist to go over the scene and the damage to the vehicles and thus to give to you the conclusion that his speed was in excess of a certain figure (i.e. 30 MPH).
Put it this way, he had the duty to avoid the accident, but his inattentive driving and his excessive speed were in fact the primary causes of this accident.
THUS THE BURDEN WOULD BE ON HIM. Since you were already moving, you can argue that once he should have seen you, the burden of avoiding a collision falls upon that person who has the last clear chance to avoid the collision.
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(3) What is the effect of the police report or the state statute regarding backing up?
The police report and the statute give the insurance adjuster something to beat you over the head with, but not much more. NO, NEITHER OF THESE IS BINDING upon your case.
In the first place, tell the adjuster that the police report is not even admissible to prove fault. It might be admissible for other purposes, but you can then get his conclusions of who was at fault to be blacked out.
His opinion of fault is based upon heresay evidence. He was not a witness. All he can testify to is what he saw once he arrived on scene and what people told him. If the insurance company tries to get into evidence the officer’s conclusion as to negligence, you will be able to object and to keep the jury from ever learning about it.
Same thing goes regarding the statute. Sure there is a law to that effect, but it surely does have the impact of being a conclusion of negligence. Every law has exceptions. And this case is a perfect example of one of the many good reasons why the person who is backing up is not always the burdened car. Thus, DO NOT BE INTIMIDATED by either the officer’s report or the statute.
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(4) Does your state permit comparative fault?
The best result for you will be if your state allows comparative fault, wherein a plaintiff can recover even if he is largely at fault. All but four states do allow you to recover even if you are partially at fault. Some states will even allow a plaintiff to recover if he is more than 50% at fault. BUT there still four states—mostly in the good ole boy South—where the legislators are well-fed at the money feeding trough furnished by the insurance industry. Money talks: it is the mother’s milk of politics.
You will have to call your insurance commissioner to find out which kind of state you live in. http://www.settlementcentral.com/links.php
Take it up with your state representatives and state senator if the insurance industry has had its way with them instead of listening to the trial lawyers, who speak for the citizenry as a whole. Contact your state trial lawyers association http://www.settlementcentral.com/links.php and speak with the lobbyist to see what you can do to support fair and reasonable legislative proposals that support all of the citizens, not just the wealthy insurance industry.
Assuming you don’t come from one of those four backward states, then you will be home free to make your claim versus the cab driver for his own negligence in this incident.
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(5) Can you make a claim for personal injuries sustained as a result of the negligence of the cab driver?
Absolutely, you should be able to make a claim for your own damages, assuming, as noted above that you are not in one of those good ole boy states that are controlled by the insurance industry as opposed to listening to the trial attorneys.
You can write to me to learn a bit about how to make that claim if you have injuries to pursue, AND assuming you have some good evidence of the excessive speed. I would get photos and preserve that witness statement. Don’t waste money on hiring a reconstruction expert unless you know you can make a claim under the statutory fault scheme.
the next inquiry is whether or not your state permits comparative negligence recoveries where the plaintiff is at fault. And beyond that, where the plaintiff is more than fifty percent at fault.
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(6) What should you do about their claims versus you for property damage and your desire to get your truck repaired?
Fight on and do not let them intimidate you. Even if you may not be able to make a claim because of YOUR alleged negligence, so too, THEY must be prohibited from making a claim versus you because of their driver’s obvious negligence.
I would NOT PAY A DIME unless they also entertain your claim for damages. If they do not allow your claim, then tell them that they are not allowed to claim versus you. Their driver was as much at fault—if not more—than you are.
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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
