QuestionQUESTION: a vehicle caused a head on collision with my vehicle rendering it a total loss. That vehicle's insurance company declined liability based on the fact that their client was avoiding a collision with another vehicle using an "evasive" action" and thus they are no liable for the destruction of my vehicle. I am taking the driver to small claims court. Is there any justification for the insurance company's position. thank you
ANSWER: Hello Rose Anne,
In order for them to deny liability based on evasive action to avoid a "phantom vehicle", there would have to be some evidence of this. The best evidence would be independent witnesses. If there are none, a thorough physical damage and scene investigation would be necessary. Thorough could likely include input from an expert such as an accident reconstructionist.
In the absence of any evidence - which in my opinion is highly unlikely, the insurance company has a duty to "believe" its own insured. Unfortunately this valid premise paves the way for shoddy investigations and denied responsibility. I wrote an article about this recently on one of my blogs. It talks about the inherent flaws of liability investigations. Take a look at it here: http://expertinsuranceadvice.blogspot.com/2011/05/car-accident-settlements-who-d
Interesting that you are suing the other driver personally. The insurance company still has a requirement to protect and defend their insured - that's what liability insurance is for after all. Let's assume that driver has notified the insurance company of the lawsuit. The carrier then must defend that driver. You might expect a settlement. Or, if their evidence is strong, they might dig their feet in.
Good luck.
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
http://FloridaAutoInsuranceCentral.com
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QUESTION: Hi Jane,
Thanks so much for your insights and opinion. It was very helpful.
Apparently the insurance company found a witness, but they will not release his statment to me. The inidvidual's name or statement does not appear on any police report. Is this normal operating procedure? As you stated, State farm is defending their client and have retained a law firm. Would contributory negligence come into play? What can I use for a defense. I obtained a report from a licensed independent property aduster who indicated that the damages were so severe and indicate the vehicle may have been speeding. What are my chances of being successful. I am representing myself, what are my chances against a large insurance company. Thank you
ANSWER: Hello Rose Anne,
Let me ask you this, then follow up with me ...
What are your damage amounts, and are you injured? Also, have you already filed in small claims court?
Let me know, and I can be more specific. Also, an independent property adjuster is not an accident reconstructionist. He opinion is worth, well, nothing.
Contributory negligence. What state do you live in? And, yes, this could be considered contributory if the driver that hit you overreacted. But in order to prove that, you would need a witness and/or an expert.
As to the witness, this is the job of an insurance investigator (SIU). How did they find the witness? Check with the police agency that wrote the report, or a nearby agency. Often this type of information is obtained from 911 call records.
Did the police classify this as a phantom vehicle accident? If so, there might be an investigator assigned. You can call the police department and ask if a detective is or was assigned.
If you can find a witness, or the same witness, there is nothing to stop you from contacting them for yourself.
Follow up with the information, and I'll see how I might be able to help you.
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
http://FloridaAutoInsuranceCentral.com
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QUESTION: Thanks Jane,
I live in New York. There were no severe injuries, but the vehicle was a total loss. I am seeking $4,997. for value of vehicle, storage and towing charges. My son who was the driver of teh vehicle that was hit was in the center turning lane. The other vehilce swerved into the turning lane to avoid hitting the turning vehicle and collided. My son says that the head on collision wasn't simulataneous as the turn. There was no tire tracks, blaring horn, or any forewarning. While state farm is defending him, under insurance terminlogy, can the judgemetn be awarded against the driver personally by a state law? Avoding one collision should not give him the right to cause another colllision without ramifications. since this happened in May, the car is long gone, but i have photographs taken by the property adjuster, can they do a reconstruct from photgraphs? Thank you so much fo ryour help.
Answer Hi Rose Anne,
Thanks for the info. I do need some additional information, as this is clearly an interpretation of liability. Can you send me an email jpytel@solutionsforyourinsuranceclaim.com
Thanks, Rose Anne
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
http://FloridaAutoInsuranceCentral.com
