QuestionI was a passenger in my friend's car in a large parking lot. She was backing out of a parking spot, we were literally barely even moving, cautiously looking side to side for traffic coming down the row. We were stunned when an elderly woman struck the back of our car, apparently she did not notice us backing up; there was a large work-truck blocking my friend's view of the side the other driver came from but that's why she was hardly moving, trying to watch for traffic. I took pictures of the damage which amounted to two 6 inch scratches past the front-right wheel on the passenger door.
My friend has insurance and the company has offered to pay $985 for repairs on a Pontiac Grand Am. The elderly woman is refusing the offer and is demanding $2800 in damages, $1000 rental car fees and is proceeding to take my friend to court, requesting court costs as well.
My questions are:
1. Is there anyway the elderly woman is at fault? The accident would have been avoided had she been paying attention. Isn't it both parties' responsibility to be aware? We couldn't have been backing out any more slowly to avoid it.
2. Why is my friend being taken to court? Isn't this why she has insurance? The amount they are asking for does not support the damage done. If there would have been damage to this extent, the police would have been called, but it was literally a scratch so no one filed a police report.
3. Shouldn't my friend's insurance company be investigating the incident? I am a witness and they have never bothered to speak to me or asked to see the pictures that were taken of the damage.
4. Should my friend get a lawyer?
Your help is greatly appreciated. Thank you
AnswerOkay, so Gina, I don't know what State this occurred in and that could change my answer, but I'll tell you how it normally works:
Most insurance policies have a portion that reads:
"We will settle or defend, as we consider appropriate, any claim or suit asking for theses damages. In addition to our limit of liability, we will pay all defense costs we incur."
This is standard personal auto policy liability language taken directly from the Insurance Services Offices sample policy.
Now, it is going to be hard to make the accident completely the fault of the elderly lady, but a good attorney could definitely make the case that the elderly lady was not paying attention, or in the alternative could not react reasonably quickly enough to avoid the accident and should not be driving. They might make it very believable that your friend was acting prudently by "creeping" out. Not to stereotype, but if I were the adjuster, I would inquire as to any medication being taken by the elderly lady and would inquire as to whether there has been any hip, knee or foot surgery or any medical condition or history of any type that could affect her ability to safely operate a motor vehicle, follow? There is a case there, but I doubt there will be a fight. Your friends insurance should be on notice and will probably pay the other party at least a little bit more to avoid a full fledged trial. It is simply an economic decision that many insurance companies make when claims are less than $5000.00.
Also, your friend could lose when it comes to fault. Generally speaking, when one is backing, they have a greater duty and responsibility to safety because of the (normally) limited visibility and maneuverability associated with backing. The question that is normally posed is "What if there had been a child walking behind you?". For whatever reason, adding the image of a child into the mix makes the backing party seem more negligent. It is simply going to be about who the jury or judge believes. As an adjuster I would likely try to settle this one at 50/50 if both parties were arguing about who was at fault. On one hand, it is possible that an elderly lady could have a physical ailment that keeps her from safely operating a vehicle, and maybe she is negligent for even being in a car. But, it is also possible that a younger driver backed without safety right into a very safe elderly lady's already stopped vehicle that was just out of sight.
So now a recap with numbers. . . .
1. Yes, there is a good case here.
2. Your friend is going to court because she is the "accused" party. The other lady can't sue your friend's insurance company because the insurance company didn't wreck into her. Your friend's insurance company only has a duty to defend your friend, not to pay anybody that demands payment from your friend. The other lady has to sue your friend, but your friend's insurance company should provide an attorney and argue the case for her. The other lady might be misguided, sued for too much and your friends insurance company will prove the damages are only $985.00.
3. Yes. You should go to court with your friend and both of you guys should be contacting your friend's insurance company and asking for the litigation manager or claims manager.
4. Attorneys will normally not take cases this small because their services cost too much to be worthwhile for damages that are less than about $15K.
I hope this helps!
