Question
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The text above is a follow-up to ...
-----Question-----
A friend of ours was crossing a street not in crosswalk, 2 lanes each way. The car next to curb stopped for him and when he walked past the front of that car he was struck. The impact was not minor, and he was taken by ambulance to the hospital overnight for observation. He has severe bruising to hip and there was some minor internal bleeding that the doctor said cleared. I think due to his age 22 and being in great shape saved him.
He has now received a call from that driver stating he only has liability insurance and wants him to pay for damages to his car. Threatened to file a lawsuit etc. No insurance company has contacted my friend.
What are my friend's options?
-----Answer-----
Pedestrian not in crosswalk
Driver not exercising due care
Rights of pedestrian not in crosswalk
Dear “J”
This raises three issues:
1. Can the pedestrian recover for personal injuries suffered by the negligence of the driver who failed to exercise due care and caution when he saw the outside lane car stopped? (The pedestrian’s award will be reduced by the percentage of his own negligence for crossing in an unmarked spot.)
2. Can the pedestrian recover for medical expenses and lost wages from his OWN personal injury protection (PIP) auto insurance policy?
3. Can the driver recover from the pedestrian for damages to his car?
Let’s take the general rule: the pedestrian has the right of way in the crosswalk, and the motor vehicle has the right of way if you attempt to cross where there is no marked crosswalk. But like all general rules, there are exceptions whereby the driver has to yield to a pedestrian he saw, OR IN THE EXERCISE OF DUE CARE HE SHOULD HAVE SEEN (as in the case of his coming upon another vehicle at a complete stop in the other lane, which would be a signal that something caused the other car to stop, and hence he would have a duty to slow and look around).
The first goal here is to use the pedestrian’s own auto insurance PIP coverage get your medical bills paid and any lost wages (after qualifying period). This is a no-brainer. You are covered by your PIP if you are a pedestrian, irrespective of who may be at fault.
The next two issues revolve around negligence. The driver is asking for payment for his damaged motor vehicle. But he may be equally at fault with the pedestrian. It all depends upon the facts.
How far from the crosswalk or the corner did the pedestrian cross? Is there no crosswalk within a half a mile, or is it just 100 feet away from where you crossed?
If the former, there is more wiggle room to get free from a negligence charge, but if the latter, then it will be looked upon with less favor.
The next topic is how safe was it to cross: did the first driver come to a stop and no other cars were visible? Did the second driver deceive you with his speed approaching where you crossed?
I have successfully won two cases where pedestrians have tried to cross the first two lanes of a four lane road WHERE THERE WAS NO NEARBY CROSSWALK and where the first car was at a complete stop, allowing the pedestrian safe passage across the outside lane.
The theory is that the second driver has to be on the alert and when he saw a car completely stopped in the roadway, he should have exercised due care and caution and approached with care.
Yes, my clients were also negligent, but, as in your case, where the injuries are very serious, there still is a substantial recovery. For example, say that the injuries would be worth $50,000 in a clear liability case. Then, if the pedestrian is 40% at fault and the driver who hit him is 60% at fault, the plaintiff will recover 60% of the $50,000, or $30,000.
Thus, you may wish to inform the other driver that not only are you going to resist paying any more than your share of negligence for his car, and you are also going to make a claim for personal injuries against his liability insurance. If he gives you a hard time or will not give you his insurance information, CALL YOUR DEPARTMENT OF LICENSING ASAP.
Find out what reports have to be filed regarding injury accidents and file one ASAP. Show his as having no insurance. Then find out what kind of proof of damages you need to file a claim against him for injuries such that he will be forced to post financial responsibility or have his driver’s license suspended. YOU HAVE TO DO THIS QUICKLY because most states have a time limit of 30 to 60 days for filing against the financial responsibility laws.
THAT will get his attention pretty darn quick—and he will give you the insurance information. If your facts are as favorable as I pointed out for my former clients, don’t take any guff from the insurance adjuster. If you want to try to do this yourself, write me again and I will give you some ideas.
But because this is a hard one to prove, and the adjuster will not understand your theory of liability, you likely will have to go to an attorney. Don’t let the attorney discourage you: shop around until you find one with the guts to take on a case like this and to WIN.
FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
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
followup question
This accident occurred in California. It was less than 100 feet from a crosswalk. The party that was stopped was stopped for a red light. The police lists the pedestrian at fault and recommendation sent to the DA. The driver states there was nothing he could do when he saw our friend in front of him. He claims to have been travelling at 20-30mph in his 93 Suburban. The speed limit in that area is 40mph.
My friend has had no luck with attorneys yet, they all state if the police report lists him at fault then that is pretty much it.
If you have any suggestions as you noted in your original answer, we would be very appreciative.
I want to say thanks for what you are doing. I think it is great that you want to help people.
AnswerDear "J",
Thanks for clearing up the facts. Unfortunately, these are not good facts. I am not worried about the police report itself inasmuch as their opinion is INADMISSIBLE into evidence.
But what I am worried about is the KEY FACTOR that could possibly put the other driver at fault: to-wit, a car stopping to let him pass in front of it.
Instead, the car stopped at the light and thus the other driver had no reason to be on alert.
Also, crossing so close to a light works against the pedestrian.
So, there goes the claim versus the driver. However, the pedestrian can still claim on his PIP for medical and lost wages (beyond two weeks off). Also, if he is the resident of a family member who does have PIP, he could qualify that way.
Now, on to the property damage claim of the driver. Your friend could tell him to stuff it, but the risk is that if the DA should bring a charge, this would not be good.
One way around such a charge by the DA is called a misdemeanor civil compromise. You make arrangements with the victim to restore him to pre-accident condition, and the charges are then not brought, the matter having been resolved.
If your friend can make an agreement for as low as possible in repair costs, sign a promissory note, pay whatever he can down and an agreed amount each month, then he will be able to use the misdemeanor compromise defense to the charges.
If charges are brought, the judge would likely order restitution in any event.
Hope this is helpful,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
