QuestionI was involved in a accident last week where I was traveling on a two way road with cars parked on my right side. Car X is traveling at same direction as me at an intersection with left hand signal on, attempting to make a left hand turn onto a dead end block. Waiting for oncoming traffic to go bye car X was nosed into the turn. Several cars passed car X from the right as they were going straight. I enter the intersection, beeping the horn and cautiously passing car x from the right attempting to go straight, at which time car x turns to the right, colliding with my vehicles rear driver door at the intersection. Driver of car x says on police report, she was making right turn and I attempted to pass from right. Parked cars would have made this impossible for me to pass from right. Insurance says I'm 90% at fault. I disagree and say her failure to signal right and use her mirror to check for oncoming traffic after changing her mind is the cause.
AnswerHi Joel,
Apologies for the answer delay. Hope everyone was alright in the collision and it's just (minor) vehicle damages we are discussing.
Unfortunately you were still passing on the right, even though you don't think you were. Think of it this way: the position in the roadway your vehicle was on appears to be a direct continuation of the parking lane occupied by the parked cars in your description.
NY traffic code states that you can only pass on the right in the following scenarios, with three conditions that MUST be met for the right side passing to be legal:
S 1123. When overtaking on the right is permitted. (a) The driver of a
vehicle may overtake and pass upon the right of another vehicle only
under the following conditions:
1. When the vehicle overtaken is making or about to make a left turn;
2. Upon a street or highway with unobstructed pavement not occupied by
parked vehicles of sufficient width for two or more lines of moving
vehicles in each direction;
3. Upon a one-way street, or upon any roadway on which traffic is
restricted to one direction of movement, where the roadway is free from
obstructions and of sufficient width for two or more lines of moving
vehicles.
(b) The driver of a vehicle may overtake and pass another vehicle upon
the right only under conditions permitting such movement in safety.
Such movement shall not be made by driving off the pavement or
main-traveled portion of the roadway, except as permitted by section
eleven hundred thirty-one of this article.
The row of parked cars strikes #2 for you. The road was not sufficient width, per your description, for two or more lines of moving vehicles accounting for the parking lane. Application of this duty extends into the intersection as well; hence the apportionment of negligence on you.
NY is a pure-form comparative negligence state. This means that the insurance company will compare your actions (breaches of duty) to the actions (breaches of duty) of the other driver, and apportion negligence as such. If I were the adjuster, without any evidence to prove which signal the other driver was using, I would consider that portion of the statements as word vs. word and have to rule on what remains: her vehicle was the lead vehicle, on a single-lane roadway (single lane each direction), and your vehicle passed it on the right after the row of parked cars ended. I would argue that perhaps she didn't make the turn right from the rightmost portion of the roadway, but on a single lane road that doesn't contribute much to the negligence pie. I would have a difficult time reasonably reducing your negligence for being to the right of her vehicle on a single lane roadway, not wide enough for two vehicles to safely fit in moving lines of traffic. I probably would come to the same conclusion, 10% liability on her for failure to execute her right turn from the rightmost portion of the lane, and 90% on you for passing unsafely on the right.
I understand you think differently, and believe me, I have done exactly what you did. We all have. 99% of the time nothing happens, life goes on normally. But that 1% of the time that there's an accident, it has to be looked at for what it is. Incidentally, you should take that 10% offer to you as just that, an offer. I can guarantee the adjuster has a range of negligence he or she would be willing to accept, it's that most claimants don't understand that they can negotiate just as another insurance company can. If you can justify your demand, it certainly wouldn't hurt to demand something like 40% and see what the counter-offer is. I think demanding anything more than that would not be fruitful, as the other company would likely see it as unreasonable (as I would).
Hope this helps, and again, apologies for the delayed response!
