QuestionQUESTION: Hi, I was hit by a person driving who was hit by a another driver. I have been shuffled back and forth by these two insurance companies claiming their not at fault. One of them has to be at fault because I was just sitting in traffic and was hit. My question is who do I take to small claims court? The insurance companies or the two drivers? FYI: The driver that hit me stated in the police report that he may have cut in front of the driver that hit him.
Thank you
ANSWER: Hello Lynnsie,
Your last comment is probably where the problem lies. But someone is at fault!
Let me ask you this, who did the police officer charge? Any tickets? Any witnesses? Do you have a copy of the police report? If not, get one.
If driver A cut off driver B causing driver B to crash into you, driver A is probably more at fault. But did driver B take appropriate actions? Could he have avoided you? And how do we know that driver A cut off driver B? There should be some explanation in the police report. And, for sure, each insurance company should have all of these answers.
It could be that both drivers are at least partially at fault. I don't know what state you live in. Liability laws vary from state to state. However, if you live in a state where liability can be divided among drivers, then it is possible that both insurance companies owe you a settlement. Certainly at least one of them owes you for your damages!
When you speak to these insurance companies, are they giving you a reason for their refusal to accept fault?
Insurance companies cannot just declare that their driver is "not at fault". Those decisions must be based on an investigation into the facts.
As for small claims court, I'm not an attorney, but in my opinion you should sue the driver personally. The question is, which driver? You need as many facts as you can acquire. You have to be in position to present a case to the court. And, yes that could be difficult. This is what insurance companies are supposed to do, not you. If someone has paid for liability insurance, his or her company is supposed to protect them from suit, and they are supposed to settle with you if you are entitled. It is not a fair practice for insurance companies to completely avoid liability where liability exists.
Has either company denied your claim? You need to speak with each adjuster and demand an update on the status of their investigation. If they say the investigation is complete, inquire about it. Try to get them to explain to you exactly why their driver is not at fault.
There is another issue. What are your damages? You will need to research the dollar limits for small claims court to see if it applies. Also, are you injured?
If you are injured, and if your property damage is substantial, this is not a matter for small claims court. If you have substantial damages and injury, I would suggest you need an attorney.
Good luck. I wish you well. If you need to follow up, please do so.
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
---------- FOLLOW-UP ----------
QUESTION: I recieved a police report but all it said was that the driver that hit me stated that he may have cut off the third driver that hit him. I was sitting in traffic and I didn't see who was at fault and there were no tickets issued. Also, no witnesses came forward.
The driver's insurance company that hit me said that they were not paying because the third driver was driving too fast and didn't have time to stop. The problem is that we all were in different lanes and it is the driver's responsibility to check to see if the lane is clear. So I don't agree with that arguement.
The third driver's insurance company said that they are not liable because the other driver stated in the police report that he may have cut off the driver.
I don't know who to beleive so I am taking both drivers to court and let the judge decide. By the way, I don't have full coverage so my insurance company isn't involved. I didn't get full coverage because my car is a 2000 but I wish I did.
How do I get an insurance investigative report? I'm from Chicago.
Thanks
Answer Hi Lynnsie,
No tickets ... everyone denying liability. As a former police officer and insurance professional, I can say that this is shameful. Why? Because no one has actually investigated this!
It always amazes me when an adjuster sitting at a desk rules that someone was speeding. Really? Is that adjuster a witness? Is that adjuster an accident reconstructionist? No, that adjuster is just not willing to conduct a fair and impartial examination of the evidence.
"May have cut off the driver?" What does that mean? It does reflect an absolute lack of investigation.
Yes, you are probably right to sue both drivers in court. And, yes, collision insurance probably would have been a better buy. If you did have that coverage, it would be a fight between the three insurance companies. Your company never wants to pay more than it should, so they would battle for you to have monies repaid to them through a process called subrogation.
What is it they say about hindsight being 20/20 ...
As to the "insurance investigative report", I can tell you with near certainty that there is no "report". Adjusters put notes in an online, internal system. These are called "log notes" or something similar to that, depending on the company lingo. Will you get a copy? No. Not without a court order, and the insurance company would put up a huge fight. If for no other reason, they don't want to set a precedent. They just don't turn over log notes. I can't imagine you'll ever get them.
From an insurance standpoint, I suggest you present your case based on the facts of what happened. "Might have cut him off" should not fly in court. "Speeding"? What evidence is there to support that? What kind of vehicle damage was sustained? Did the cut off driver take proper evasive action? Did he have the "last chance" to avoid the accident before he plowed into you?
If it were up to me, I would start with the premise that both of them are at fault. Really, what is the logic that someone sitting in traffic gets nailed because 2 other drivers cannot drive properly and the insurance companies refuse to accept any degree of liability?
Pick holes in their accounts, and maybe you can succeed. I hope so. You've been wronged.
Good luck, I wish you well.
Jane Pytel
http://SolutionsForYourInsuranceClaim.com
