Auto Insurance Claims: Accident caused by driver who may or may not have had, frustration levels, own insurance

Question
QUESTION: My family and I were involved in an accident recently.  The accident was not our fault, and I am told the driver of the other vehicle was cited for "Failure to Yield" (I have not seen the actual police report yet).  Our family sustained both Bodily Injury and Property Damage in the accident.  Our own insurance company has appraised the damage to the vehicle and determined it to be a Total Loss; we do not have Medical Coverage on our own policy.  We do have health insurance, but I digress...

The other vehicle was insured with a Major National Company (hereinafter referred to as MNC), however:

1.  The driver of the vehicle is not the owner, and
2.  The owner of the vehicle is apparently "out of the country" and unable to be reached, and
3.  I have been unable to ascertain the nature of the relationship between the driver and the owner.

MNC claims it is still unable to assume liability for this accident, since they have been unable to speak directly with either of the policyholders (the owner's mother is apparently also listed on the policy).

In the meantime, my own Out of Pocket expenses are beginning to add up (as are my Inconvenience and Frustration Levels).

So my questions to you:

1.  Is this "permissive use" clause (that seems more like a LOOPHOLE to me) true?  If the driver did not have permission to drive the vehicle--or if MNC is unable to determine whether or not the driver had permission to use the vehicle--is MNC off the hook for liability?

2.  If so, is there any chance they would ASSUME liability, just out of the goodness of their hearts? ;-)

3.  Just how hard is MNC obligated to work to determine whether or not they are liable in this case?  Is sending an email every once in a while and leaving a voicemail message here and there sufficient?  Is there anything I can/should do to speed this process up?

4.  Is it reasonable to expect my own insurance company to work on my behalf to help me in this process, withOUT my having to file a claim with them?

5.  Is it reasonable for me to be hesitant to file a claim with MY OWN insurance company because I am afraid of what might happen to my own premiums/good standing with the company--even though any claim I would file would be a "no fault" claim?

6.  Should I hire an attorney, or is all of this "standard operating procedure" for an accident of this magnitude?

I would very much appreciate your take on all of this, as I feel like I'm in a foreign country and don't speak the language.

Thank you,

Paige

ANSWER: Paige,

First of all, the liability carrier for the owner of the other car has no legal duty to you. The driver, on the other hand, does.

Determining whether he had permissive use of the car is not really that insurance company's problem and A. they are off the hook for the liability if they determine he did not have permissive use , and B. no, you cannot expect them to pay the claim out of the goodness of their hearts.

You can go to your state's insurance department to find more information or open an inquiry to the matter. While they are typically ineffective in these matters, it may light a fire under MNC and get them to pursue the owner more aggressively.

You need to send them communications in writing by certified mail (with return receipt). Or you can hire an attorney to do this for you, but if the at fault driver has no assets, you will be out the cost for the lawyer.

While I understand your reluctance to file a claim with your own company, there is nothing to fear as this is not a chargable accident to your policy. Your rates cannnot go up and you should be in no danger of being dropped. Their subrogation department will go after the at-fault driver and the insurance company of the car he was driving and sort the matter out.

Charlie

---------- FOLLOW-UP ----------

QUESTION: Thank you so much for your quick response.  I hope you don't mind if I ask just a couple of follow-up questions:

1.  "First of all, the liability carrier for the owner of the other car has no legal duty to you".  Why?  Because I am not their policyholder, or because my injuries/damages were (apparently) caused by someone who didn't have permission to use their policyholder's vehicle?

2.  "The driver, on the other hand, does."  But my only recourse against this person is to sue her in a court of law, correct?  Is there any other type of insurance she could possibly have that would cover her in the event she causes an accident while driving someone else's vehicle without permission?

3.  "Determining whether he had permissive use of the car is not really that insurance company's problem."  Really?  So "innocent until proven guilty" applies when determining liability, too? It's not "liable until proven not-liable"?  So MNC really CAN just send a couple of emails and make a couple of calls and then say "Oh, well...We weren't able to determine whether or not our insured's vehicle was used with permission so we are going to assume it wasn't and deny this claim"?

4.  Is there any chance in the world that my own UM coverage would pay in this case, since her use of this vehicle without permission has rendered her--essentially--uninsured?

Thanks again,

Paige

Answer
The liability carrier has no legal duty to you until you have a court ordered judgement against one of their insured parties. They have no contract with you, however they are contractually liable to cover the liability of their insured.

Yes, unless that driver admits liability to you (in writing preferably) or you have a police report that supports your case, you would have to prove your case in a court of law. Small claims court should do the trick, so you won't incur the cost of a lawyer.

As a third party claimant, and barring any state regulations to the contrary, the liability carrier can mislead you and essentially lie to you (verbally of course). They are adverse to your interests. You are nothing to them but a drain on their reserves, at this point anyway.

And yes, depending on the language in your own policy, your UIM coverage will cover the property and medical expenses of being hit by an uninsured driver.

Your first task is to determine what the circumstances were with the owner of the car and the person's use of it. Call her up and see where the owner is. Find out what her legal mailing address is and send her certified mail demanding that she either submit the claim to her insurer or advise her insurance company of the person's use without her permission. If the woman who hit you did not have permission to operate the car, then criminal charges may be filed.