QuestionOn 12 May 2010, my husband and I (I was the driver) were traveling W thru an intersection and the other party was traveling N in AL. I was half way thru the intersection when the other party T-boned me in the driver’s door @ 55 mph (the speed limit). There was no evidence or indication the other driver made any attempt to avoid the accident. Didn't this driver have the last clear chance to avoid? I had slowed my speed of 45 (the speed limit) as there was a vehicle stopped at the light in front of me and the light turned green and he passed straight thru the intersection with me behind. There was a vehicle traveling behind the other party (witness) who states they had the green light. I (as well as my husband) vehemently deny our light was red when we entered the intersection but don't have the luxury of the driver in front of us as a witness. My argument is, even if I did run a red light (which we deny) didn't the other driver have an obligation to at least try to avoid? If he had at the very least applied the brakes injuries suffered by all parties would most likely have been less severe. Myself, my husband and the passenger in the other vehicle sustained permanent injuries. I was unconscious and don't remember anything after the accident until coming to in the Hospital. My husband remained conscious throughout the entire accident. The other party is now suing. To my knowledge no citations were issued to me or the other driver. If there is a “last clear chance” statue why is no one willing to enforce? My insurance company states the witness traveling behind the party who hit us dictates it was my fault.
AnswerHi Mona,
You seem to have two questions in your case recitation. First, you are asking whether or not the other party can be tagged with some negligence for failing to avoid the accident, even if you were against the light. Second, not fully stated, but latent, is your question as to whether or not you and your husband could make a recovery.
SUMMARY: it will do YOU no good to argue for negligence on the part of the other driver if in fact you yourself were negligent. BUT your husband likely does have a claim versus BOTH you and the other driver. Your rates are already going up, and they will not go up one dime more if your husband were to make a claim against you. [But you must check first to see if such a claim by your husband is allowed in your state since it is kind of backward in respect to plaintiff claims (see below).]
Let's start with MOST IMPORTANT THING: you were smart to give the case over to your insurance company. Now it is their job to defend you.
The next topic concerning your attack on the plaintiffs is whether or not they were partly at fault for failing to avoid the accident. I will address this later, but note that insofar as having any impact upon how far your new insurance rates will rise, this is not relevant. Here is why it will do you no good whatsoever even if the plaintiffs' claims were beat down by half because of their negligence: your rates are going up no matter what. Your insurer treats this as an "at-fault accident", and your rate increase will be the same whether they pay out $2,500 or $25,000 or $50,000. You do not get a smaller rate reduction if they only pay out the smaller amount.
But even if it does you no good to fight for a reduction in the payout to the plaintiffs, your suggestions and statement of facts still will be appreciated by your insurance defense counsel. She will use them to fight the claims of the plaintiffs.
By the way and just as an aside, even if there had been any negligence on the part of the other driver, that negligence—at least in most states--cannot be imputed to the passenger in the other car. Just as your negligence cannot be imputed to your husband's claim versus YOU and versus the other driver. [Note—such claims ARE allowed in the majority of the states, but I have not researched whether or not your state has a ban on such claims of a passenger spouse versus a spouse driver. Given the regressive nature of your state, however, this is a possibility.]
Now let's address the respective claims of negligence. From what you said, I think the other driver was negligent. He should have been able to take SOME kind of evasive action but for his excessive speed. One factor that will come into play is the speed of the other vehicle. If the light had changed just before you entered the intersection—which is apparently what they are claiming—how in the world did that driver enter at 55 MPH? Even with the green light, his speed seems excessive given the conditions at the time. I will bet that if you check, the speed approaching any intersection will be no more than 35 MPH. The fact that he was exceeding this speed means that he was not able to control his vehicle to avoid or to lessen the impact. Had he been going a legal speed, he could have either avoided the collision or maneuvered to greatly lessen the impact.
Even if you had breached your duty to other drivers by entering the intersection, he STILL has the duty to avoid the collision or to lessen the impact if at all possible. AND it WAS possible for someone going the posted speed to do just that: to control his vehicle and to avoid or at least lessen the impact. Hence, I would agree that he is negligent. Now what will that get you in regard to making a claim versus him?
First off, let's say that both drivers have some negligence to beat or they will not recover. That is because you live in a politically regressive "Red" state in which plaintiff claims are prohibited all together if there is any contributory negligence. Alabama is one of only four—all Southern, Red states—in which this harsh provision still remains. All other states have adopted one or another form of comparative negligence, wherein a plaintiff can recover even if she is negligent, although some of the states limit the plaintiff's contributory negligence to 50%.
Check with your attorney, but I do believe that the claims of both passengers can go forward in most all states (not knowing about your state though).
Bottom line: do NOT become intimidated or discouraged because they have a witness. YOU were in a MUCH BETTER position to observe than that wiriness, and you KNOW what you saw. Fight on with your own version and do not give up on your own claim and your own defense against the plaintiffs' claims. AND surely DO explore the possibility of your husband making a claim versus your own insurer and the other driver.
Since this is a live claim on the part of your husband, have him go and see his own personal injury attorney. That attorney will give him some guidance on whether or not your husband does have a viable claim.
That is about it, Mona. I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
