QuestionWE HAVE A SMALL BUSINESS IN PA.TWO CARS FROM OUR DEALERSHIP INVENTORY WERE HIT DUE TO A COLLISION ON THE HIGHWAY IN FRONT OF OUR DEALERSHIP.A PERSON ON A SIDE STREET WE WILL CALL PERSON A PULLED OUT ON TO A MAJOR HIGHWAY IN FRONT OF PERSON B AND HIT PERSON B IN RIGHT REAR WHEEL. PERSON B THEN HIT INTO TWO PARKED DEALERSHIP CARS IN OUR LOT.
THE STATE POLICE WERE CALLED AND HE CHARGED PERSON A WITH FAILURE TO STOP AT STOP SIGN AND INFORMED HER THE ACCIDENT WAS HER FAULT.PERSON A FOUGHT WITH THE COP AND SAID IT WAS NOT HER FAULT AND WE ALL HEARD THE COP TELL HER IT WAS HER FAULT.
PERSON A INSURANCE COMPANY CAME OUT AND WROTE ESTIMASTES.ONE CAR IS FIXABLE THE OTHER IS TOTALED.THE TOTALED CAR HAD TO BE TOWED.
WE THEN RECEIVED A LETTER FROM PERSON A INSURANCE COMPANY TELLING THEY WILL NOT BE RESPONSIBLE FOR CHARGES OF STORAGE AFTER 3 DAYS.
WE CALLED CLAIMS SPECIALIST FOR PERSON A COMPANY AND WAS TOLD THEY WERE WAITING FOR POLICE REPORT.
SHE CALLED US BACK A WEEK LATER AND SAID THAT THEY FELT PERSON A WAS 90% AT FAULT AND WE SHOULD CALL PERSON B INSURANCE COMPANY TO FILE A CLAIM FOR 10%.
I HAVE NEVER HEARD ANYTHING LIKE THAT.
WE CALLED PERSON B'S COMPANY AND THEY TOLD US TO GET LOST.
WE CALLED BACK PERSON A'S COMPANY AND ASKED TO TALK TO SUPERVISOR AND NO ONE WILL RETURN PHONE CALLS.
WE DO NOT CARRY FULL COVERAGE ON OUR DEALERSHIP CARS SO I CANNOT GET HELP FROM MY INSURANCE COMPANY.
WHAT SHOULD WE DO??
MY PARKED CARS WERE NOT AT FAULT.
AnswerHi Kathy,
Every state (+ DC) has a contributory (Comparative) negligence law.
This means that the two insurance companies insuring driver 'A'
and driver 'B' must thoroughly investigate the accident and assign a degree of fault against each driver, ranging from 0% to 100%.
In some states (5), if a driver is found to be even 1% at fault, that driver is denied the right to collect even one penny for his damages.
This is considered PURE CONTRIBUTORY NEGLIGENCE.
You should DEMAND that the company for driver 'A' send you written
proof that the company for driver 'B' has accepted the 90/10
decision.
In 21 other states if one driver is found to be not at fault by 51% or
greater, he can collect that amount from the fault party's insurance
and the balance from his own company if he carries collision. The
party found to be 49% or less at fault can collect nothing from the
other company and only the percentage that he was not at fault from his own company if he carries collision. (Modified Comparative
Fault - 51%Bar).
Thirteen states recognize a Pure Comparative Fault Rule which allows a party to recover even if he is 99% at fault, but recovery is
reduced by the damaged party's degree of fault.
Twelve states recognize the Modified Comparative Fault - 50% Bar
rule. meaning a damaged party can't recover if he is 50% or more at fault, but can recover if he is 49% or less at fault. Recovery is limited by his degree of fault.
You must understand that the legal wording of an insurance policy
gives the insurance company the right to make the final decision
on how the claim is to be settled. Many times the decision is made
by a company to settle a claim for their convenience by accepting a small degree of fault because it's cheaper than fighting the opposing insurance company through the process of arbitration. They are not considering their insureds financial situation, but their own. It's highly probable that the company for driver 'B' accepted 10% fault just to get the case closed. The insurance company for driver 'B' is not going to be liable to pay a penny to driver 'A', because Pennsylvania follows the MODIFIED COMPARATIVE FAULT -- 51% BAR.
My recommendation to you is to secure a copy of the police report
and make personal contact with driver 'B' and ask if he got paid
100% and the return of his deductible or if he had to pay 10%.
If he is reluctant to reply, explain the 90/10 situation that has
been offered to you and if you accept such an offer that you will have to file suit against him in order to get his company to pay
you. That should loosen his tongue. It's entirely possible that
you will have to accept 90% from driver 'A' insurance and file small claims action against driver 'B' for 10%. When you win in small
claims court, the insurance company for driver 'B' will be legally
obligated to pay you.
Once you learn the method of payment to driver 'B', before filing small claims action, you should file a complaint with the State
Department of Insurance.
One or both of the insurance companies are "jerking you around"
and this constitutes unfair claims practice which leaves them open
to punishment by the Department of Insurance and possibly opens the door for you to file a Bad Faith lawsuit which also allows putative
damage to you. If that is the case, you will have Attorneys begging
to handle your case.
I hope that you find this information to be of help. Your feedback
by rating my response will be appreciated.
Sincerely,
Bennie
San Francisco Bay Area
