QuestionNo follow up question; just wanted to thank you for your response. It was very, very helpful.
Regards,
Lee
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Followup To
Question -
First, thanks for taking your time to offer help via this site. I have a question with how our claim is being handled by our insurance company. Here is the situation. My wife drove through a green light at night and struck a man riding a bicycle crossing on the far side of the street via the sidewalk. He had been drinking and claimed he thought the light was green. No less than 4 witnesses came forward and said my wife had the green light and that the bicyclist rode right in front of her and that she was not speeding. The rider suffered major injuries requiring expensive surgeries. Our insurance company is telling us that even though we have all the witnesses in our corner, my wife may still be considered partially at fault (like 5%) by our insurance company so that they can avoid a trial. Does it sound to you like our insurance company (USAA) is not in our corner as much as they should be? It's as though they would rather allow the other party a settlement that would affect our coverage rather than fight this. I'm sure it doesn't help that the other party's dad is his lawyer as well. What are your thoughts on this? Should we hire our own lawyer? Also, do I have a right to get copies of the independent investigation regarding the accident as well as any correspondence between USAA and other other party? I was told "no" by USAA; however, I wanted your opinion. Thanks for you time in this matter.
Sincerely,
Lee Jackson
Answer -
Dear Jackson,
I am going to give you:
(1) a little tutorial on insurance law involving a claimant who is at fault;
(2) then I will look at USAA's refusal to give you correspondence, etc;
(3) finally, I will hit the most important topic for you, and that is how to avoid getting tagged with an "at fault" accident that could raise your rates.
(1) Insurance Law: at-fault claimant.
There is a right in most states to recover for a personal injury even if the claimant is at fault. The recovery amount will be reduced by the amount of the claimant's fault.
For example, if the claimant were to be 40% at fault, and a jury set the total award amount at $10,000, then the claimant would recover only $6,000.
In a few states, once the claimant's percentage of fault exceeds 50% he cannot recover. But in most states, the claimant can recover even if he bears the majority of the fault.
Apparently in your state the claimant can bear most of the responsibility and still recover, albeit a very small amount since he was very much nearly the sole fault of the accident.
Still, a jury could easily find that your wife failed to keep a lookout and did not notice the man approaching halfway across the crosswalk.
Having the right of way does not excuse the party since your wife may have had the last clear chance to avoid the accident if she had been paying attention.
Hence, USAA is certainly within its rights to try to settle the claim, even if the plaintiff is mostly at fault.
(2) USAA's refusal to give you correspondence, etc;
USAA is correct: you have no right to see their investigation, nor any correspondence between them and the other party, UNLESS AND UNTIL the size of the claim is such that it could exceed your policy limits.
If it gets anywhere near that, USAA will pay for a truly independent attorney just for you. That attorney will be able to review the claimant's correspondence and medical records inasmuch as his job is to tell the company to settle within the limits or be prepared to pay the excess should the claimant get any award above your limits.
Since this claim is not going to be anywhere near your limits in net value to the claimant, you will not have access to your insurer's files.
(3) How to avoid getting tagged with an "at fault" accident that could raise your rates.
Basically, you do not care what the insurance carrier settles for if you can avoid an at-fault label on this accident inasmuch as THAT will almost always cost you with a rate increase.
Here is what I would do. Contact USAA and ask for the underwriting department. There you will learn the standards that they will use to designate an accident at-fault for purposes of raising rates.
Yes, USAA will allow you to speak with someone who does know the exact answer to that question. If for some reason they do not, then contact your state insurance commissioner http://www.settlementcentral.com/links.php and find out from him the minimum amount he has established in your state for a company to be able to designate an accident as at-fault for purposes of increasing rates.
In my state, the insurance commisioner has set the amount, and I believe that if they have to pay out any more than $700 you will get tagged with an at-fault accident.
THAT $700 includes property damage and personal injury settlements.
So, it is likely that you will get tagged with an at-fault accident, but I also have one more suggestion. Try to go for an agreement whereby you will not contest their making such payments to the claimant ON CONDITION that they do not try to hit you with an at-fault designation.
Try to do this verbally at first, where you can see if there is any chance for an agreement. Then confirm your agreement with a certified letter reciting the agreement reached between you.
Other than avoiding an at-fault designation or avoiding a claim in excess of your limits, you really have no business whatsoever butting into the negotiations between your insurer and the claimant.
Some people get so riled up about their companies overpaying what the insured thinks the claimant's claim value, they take to spying on the claimants and also try to talk with the claimants directly.
DO NOT EVER EVER EVER get in to a direct relationship with the person who is making a claim against your policy. THERE IS NOT ONE SINGLE advantage to making such contact, but on the other hand, it is filled with danger to the insured. A person could lose his rights to coverage in a severe enough case of contact with the "enemy".
I hope my extra time here was of value to you, and hence I would respectfully request that you take the time to find the feedback forum on this website and to leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
AnswerHi Lee,
Thanks for the kind comments and the great feedback. All volunteers on this site really appreciate such feedback.
Feel free to ask any other question as you go forward with this.
Best wishes again to you and to your wife,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
