QuestionQUESTION: Hi, Jane, this matter troubles a lot and I really need your advice urgently.
I am a uni student in the LA. My parents came to US and visited me in early March this year. On our way to LV to spend a vacation, my father suffered from a heart stroke and my mom moved to the back seat to help him. I took over the driving, forgetting that my driving insurance had already expired for a week. I had also forgotten that I was not an authorized driver in that car because it was a rental car from Budget rented by my father. That day was a snowy day and the road speed reduced to 30 mph with road sign posted by the Caltrans. Snow chain control required.
While I was driving, I was stopped by some chain installers and required to approach the road shoulder to put on chains. While my car was inside lane 2 completely stopped and I turned on the right turning signal, waiting for the chance to turn right, a car drove up from lane 3 and cut towards lane 2 because some cars had occupied lane 3 or crossed over the road shoulder/lane 3 for chain installation, thus rendering no through traffic for her car. Probably that car has control problem in view of her high speed driving that this car slammed on mine from her left, damaging my car's right front fender. There were 2 chain installers who had witnessed the whole incident and helped me to call 911 and CHP arrived. We had no exchange of conversation so that I did not know what she had told the police. I just found out from the report at later time that that car driver lied to the police saying that she was in Lane 2 (actually she was in Lane 3) and she was having a straight passing. To tie in with her 'story', she further alleged that I was in Lane 1 (actually I was in Lane 2) that I suddenly turned right into hers to cause the collision. She claimed further that she did apply brake but still unable to stop. Obviously both spoke differently but police accepted her version of statement and wrote in the summary to say that because I made the turn and caused the accident. I was also remarked by the police that I violated a CVC code but I was not given any citation on the spot. The police also stated that he made such a summary after seeing both cars' damages. As aforementioned, 2 witnesses, the chain installers, were involved in the incident. But only 1 witness statement was recorded – it was said that the witness did not aware which lanes we were in and who turned into who but that witness confirmed that my car looked like stopped when the other car was passing at a very high speed of 65 mph.
There were many inaccuracies in the police report – First of all, the police reported that I was in Lane 2 ( in my statement part on page 4 of the report), but all at a sudden, he came to the conclusion in the summary on page 5 that I was in Lane 1 and hit the other car at Lane 2! Second, a wrong sketch was given by the police officer in page 2. At the scene of accident, there are 3 lanes and a big shoulder at the right (I can prove it in the Google map). But the police sketched that the scene has only 2 lanes and a big shoulder on the right. I believed that it was his wrong perception that the scene had only 2 lanes so that he tried to put me in lane 1 while the other car was at lane 2 at the summary session on page 5, without noticing that the summary contradicts to what had written in page 4. Third, The police officer stated that road speed was 65 mph with which normally it should be but in actual fact, the road speed had been reduced to 30 mph (I got an official confirmation from the Department of Transportation) at the material time so that he had not duly considered that the other driver was speeding in accordance to the witness statement as well as the other car driver’s own statement claiming that her speed was more than 40 mph. Fourth, the other car driver admitted to the police that the big Vic was ‘on her next right when she was passing’ on her statement on Page 4. This indirectly proved that she was actually in Lane 3 but not lane 2 as what I had witnessed because all the big Vic were inside the shoulder which was at the right next to Lane 3. Fifth, I brought 2 witnesses to the Police officers because only 1 witness was recorded in the report. At that moment, I did ask for both witnesses’ names and means of contact, they just gave me their names but they refused to give me (a foreigner) further details such as their telephone numbers and addresses. Yet, they assured me that they would testify and give their means of contact to the police officer. I saw to that the two witnesses had start discussions with the police officer before we drove our car away. I also took some pictures which shot on the spot to prove that Lane 3 was not having the through traffic at the material time.
Right after the accident, the other car driver had not exchanged any information with us before she drove away. She quickly drove away after she was interviewed by the police officer. My father had, in two occasions, reported the incident to Budget, the rental car company: one was on the spot via the Budget’s hotline shortly after the accident happened. My dad said his statement should have been taped if not erased. The other occasion was a written statement which was handed to Budget on the next day upon the car’s returned at the LA Airport.
The other car insurer filed a claim against Budget but was denied because I was an unauthorized driver driving the car. That insurer asked me for a statement which I gave them, listing all inconsistencies, photos and Department of Transportation letter to support that the other car driver was speeding at the time and she should be telling a lie. Without getting further news from them, one day I suddenly received a letter in early May, stating that I was required to pay $3,425 to cover the repair and rental charge without giving me any breakdowns of the calculation. The insurance company said that I am obligated to pay because they had paid to the insurer already. When I asked the writer of this demand letter, the lady said that she was dealing with debt collection, not the liability issue. I was asked to go back to the liability assessor who previously asked for my statement. This lady simply told me that I had been determined 100% at fault in accordance with the police officer’s summary. I asked her why she did not consider the discrepancies in the police report and the witness’ statement but she said she needed not to. She explained said that the witness so named in the police report just said I was looked like stopped but not stopped, so there was the chance I slammed on the other car and that the witness was not a competent authority to say that her insurer was over speed. I was totally angry because if the police had investigated responsibly, that car driver should have received at least a citation. More, the witness, the chain installer was a 52 years old man who needed to work daily in the freeway. It is less probable that he was not having any driving experience and he should have the sense of speed. Furthermore, he was in a stationing position, he was not in motion so that he must had a clear idea of what speed the car was while it passed him.
I further asked that liability assessor to forward the information and statement I had given to her supervisor for a re-visit of the case, she said she did not keep my emails and supporting either. She added said that she would not deal with the case any further because it had finished. I asked for the supervisor’s name and telephone, she gave but the phone was always turned on message recording.
Almost at the same time, my dad received the Budget’s bill. It was $1,013. My dad phoned Budget and they said because my father violated the contract, so it was my dad’s duty to lay claim on the other car insurer if he believed it was the other party’s fault. So my dad did as advised. But the other car insurer rejected the claim at once and sent a certified letter to me (not to my father who is now in Korea) stating that the ground was - my dad has no property right over the Budget car and only Budget has the legal right to do so.
I phoned the writer of the rejection letter again, i.e. the same liability assessor. She replied that she would not handle my case anymore and I should talk to her supervisor as she last told me. But the supervisor could never be reached! My dad reverted back to Budget but Budget said that since the other insurer had determined I was the fault party, so they would not file the claim against the other side. I and my dad are now trapped in the middle!!
I then called the writer of the demand letter to look for the supervisor’s other means of contact. She said that as far she knows, the supervisor knew about my complaint already but he would not deal with it as the liability claim had finalized. In the absence of any new information, they would not reopen the case. The lady said that they have 90 days for me to pay the ‘debt’ counting from the date of issue, once it is due (should be in early August), they will transfer the case to the other department for collection actions. I told them I have no money but she said I should ask my parents to pay; otherwise they will sue me in court. Or I should ask my own insurance company to file a claim against them on my behalf, because they can deal with insurance company. I did call my insurance agent, her advice is not to alert my company because all these people will simply concur with the ‘finding’ that I was at fault just like Budget, urging me to pay and take the chance to increase my insurance premium too.
My parents are not rich and they are taking 2 jobs each to support my studies in the US. I have no money to hire an attorney or lawyer to defend against me or sue the insurance company/the police officer for not having done their jobs with due diligence. I have no means to ask for a review of the case. Will they sue me? Can you advice me what I can do?
ANSWER: Hello Ling,
From your description of events, you are the victim of flawed liability decisions based on an inaccurate police report. Unfortunately this is not an uncommon event.
Insurance companies must not use a police report as their sole means for liability decisions. If there were witnesses who could have supported your account of the accident, the insurance companies should have interviewed them. Apparently this was not done. Instead it appears everyone involved sided with the police officer's version. The officer is not a witness. Nor, I doubt, is he an accident damage expert or an accident reconstructionist.
Regrettably, there is little that can be done to correct a faulty liability investigation. Really, the only possible solution is by means of litigation in civil court. And for that, you would need a competent personal injury attorney would would be willing to take your case. And while the damages are certainly substantial for you (as they would be for most people), for an attorney, the damages are probably not significant enough to warrant a suit. Usually attorneys only become involved where there are injuries.
I am not certain I agree with the advice your agent gave you. It is not your agent's job to convince you not to file a claim. What you need to know is whether or not you are covered by your own policy under the circumstances you describe. While your policy might cover you when you are driving a rental car, there could be an exclusion for this scenario. You need to read your policy very carefully to determine if this loss would be covered. If you do not understand the policy, then you could go back to your agent for clarification. But understand, the agent may not be fully qualified to interpret the policy. And, if your company determines that you are at fault for the accident (even though they would be required to conduct their own independent investigation), your rates could go up. But would they go up an equal amount to your having to pay this personally? I doubt it.
On the other hand, if you have witness contacts and substantial evidence to support your innocence, you would provide that to your insurance company in hopes of a positive result. In that scenario, I am assuming, of course, that you do have the necessary coverage available.
Can they sue you? Yes. They can also damage your credit rating. You might want to inquire if they would agree to a payment plan where you could pay in increments. They would, I'm sure, rather agree to that than to sue you.
Is payment the correct thing? Probably not if you are clearly not at fault. But it could be virtually impossible for you to prove that. It may be more prudent for you to just pay off the amount. But make certain you understand your own policy, and its potential coverage before you do that.
Hope this helps. Good luck.
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
http://FloridaAutoInsuranceCentral.com
---------- FOLLOW-UP ----------
QUESTION: Thanks Jane. In fact, I went over the insurance policy with my school legal adviser this morning and he said that my driving of the rental car should not be covered because the policy had expired for a week. The adviser also said I had better not to tell my insurance company of this incident nor telling the other insurance company the presence of my insurance policy because they will, as expected, sided with the police report and said that I was at fault while my insurance could not cover this case.
BTW, when I went by the mail box 2 hours ago, I discovered that a reminder from the other insurance company mailed to inform me that if I had no money to pay, they will sue my dad who being the renter but a negligent party. I bring this letter to the legal advisor as well.
On the other hand, my school legal advisor gave a few unofficial suggestions:
1.He doubts whether they will sue me because the amount was not 'significant' enough to raise the issue in the small claims court, and also not worth for the insurance company to file a claim in the civil court because they know I have no money to pay. He said that actually, the other party's insurance policy should have this (damage by uninsured) covered.
2. He doubts also the insurance company can sue my dad because I was aged 20 now; while my dad had not entered into contract with them. My dad has heart disease and he is staying in Korea.
3. Make a complaint to the Department of Insurance telling them the insurance company was not doing their job with due diligence and demand for the explanation why those doubtful points in the Police report not addressed and the witnesses not interviewed.
4. Write a certified letter to the insurance company stating that I was only able to pay a few hundreds and no more. See their response.
Are any of these work? Or do I have the chance to win in the court if I defend by myself in case being sued? Please further advice. Many thanks.
Answer Hello again Ling,
If your insurance has been formally cancelled for non payment - meaning the cancellation date was effective prior to the date of loss, and you had been notified in writing - then indeed you have no coverage. If you were to file a claim, it would be useless.
Regarding your questions:
1. I regret that I disagree. I predict that the insurance company will come after you. They might not file a lawsuit, but the may turn it over to a collection agency. That would devastate your credit rating if you did not pay it. But it is possible for you to negotiate with a collection agency if it comes to that.
Unfortunately in my experience, I have seen that insurance companies go to great lengths to collect what is owed to them, regardless of the circumstances. Sorry to be the bearer of bad news - and I hope I'm wrong!
2. Going after your dad is bully tactics. I agree. They can't sue him in Korea.
3. You could try to go the insurance department route, but I don't think it would amount to anything. To file an actual civil remedy, you have to cite specific statute. This does not apply to you here. And departments of insurance cannot intervene in the payment of individual claims. You could certainly try, but don't hold your breath for anything positive.
4. Yes. I would absolutely negotiate with the insurance company. First try to get them to agree to a lesser amount, explaining your financial hardships. Then, get them agree to a payment schedule that you can afford. By all means, document all of this in writing. Certainly with regard to the terms of the final negotiations, send it return receipt.
I wish you well. Hope everything works out to your advantage. Good luck.
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
http://FloridaAutoInsuranceCentral.com
