QuestionHello, in october 08, my sister was driving my car and this person who was making a left turn hit the car. My sister lost control of the car and it was declared a total lost later on. When the police officer came, they gave my sister a ticket saying that 2 people called and said my sister ran the red light. We contacted the insurance of the person but they decide not to do anything because the police report said my sister ran the red light. I was inside the car the day of the accident. We decided to fight the ticket and after the court date, the judge found my sister not guilty for running the red light. We send a letter and other relevant papers to the other insurance to let them know that their client was responsible for the accident as we told them at the beginining. Since the accident we do not have a vehicle anymore. We are in Dec 08, What do you think is going to happen now? Do you think they will try to not pay for the damages? What should we do in case they decide not do to anything. How do you think they will try to handle this case if they want to pay for the damages.
Thank you
AnswerHi Caroline,
You already know the answers to each of your questions, but you are afraid to admit them to yourself. Yes, the insurance IS going to do all of the negative things you asked about, and MORE. In review of your questions, their insurance IS GOING TO:
#1. try to not pay for the damages;
#2. decide not do to anything;
#3. REFUSE to pay for your rental car
#4. Screw you over, IF they should decide to pay for any damages.
I guess that brings up the immediate question as to why you do not just turn this over to your own insurance company since they are obligated to pay you all that the tortfeasor's company will, less your deductible. But if you have no insurance, then I will proceed to answer your questions regarding the third party carrier.
Let's step back and take a look at six aspects of your question that need attention in order to figure out what is best for you.
First is the idea of the police report, and what it means.
Second is the idea of witnesses against you.
Third is the relevance of the traffic ticket result in court.
Fourth is whether or not you were a passenger.
Fifth is whether or not your sister sustained any injuries.
Sixth is the total amount of the damages vis-à-vis the jurisdictional limits of your small claims court.
OK, Caroline, here we go:
#1. The police officer's designation of fault versus your sister is NOT admissible in court. It is hearsay, and since he was not a witness, he has no right to give any opinion as to fault. HOWEVER, he can report what witnesses told him about running the red light.
#2. The fact that two witnesses took it upon themselves to call the officer and report your sister's violation of care owed to other drivers is devastating to any claim your sister or you may make. You can bet that the third party carrier will be calling them as witnesses, so you best call them and figure out what they have to say. See if their vantage point could have caused confusion or misjudgment as to when the light turned red. Also, what attracted them to look that way—wasn't it the crash itself? In that case, they would not have looked in time to tell whether your sister ran the red light.
#3, This is a tricky legal issue. In the first place, if I were that third party adjuster, I would argue that this result is not at all relevant since the two witnesses were not called to testify. And second, their insured, the tortfeasor, was not notified of the trial and he was not called to testify. From your side, I would argue that in this forum all sides had a chance to be heard, and all arguments were made and witnesses presented as were necessary to just deliberation of the issues, and further, the issues on liability are the same as would be at a trial with the tortfeasor, and HENCE, this is a settled and BINDING LEGAL RESULT as to the issue of liability BETWEEN these two parties. We call this "res judicata". http://en.wikipedia.org/wiki/Res_judicata Even if the adjuster does not acknowledge your superior position on this, I would not give up, but instead I would keep hammering away on this issue. The adjuster does not know what to do about it, since he has not encountered it much in his business, so keep hitting him with this argument and you can make some inroads in his armour.
#4. What is the relevance of your having been inside the car on the date of the accident? If you were a passenger, then say so and present your own witness statement to rebut that of the two witnesses. It would seem that you as a passenger in your own car would have been paying attention to where your sister was going a lot more than two passengers who had no interest in your car and likely looked just after the accident.
#5. If this was a hard hit, make sure your sister is fine before settling the claim just on property damage. The tortfeasor likely DOES have bodily injury liability coverage, and it is likely that your sister did sustain sufficient trauma to cause injury to her body. Do not settle or proceed much further without her getting proper medical or chiropractic care. Even at this late date she can still go to a doctor on this for the first time. Just make sure that the doctor's clinical notes DO CONTAIN a history of all that has happened to her since the accident. Yes, the other side will try to discount that causation link between the accident and her injuries under treatment, but it is just a matter of proof, and you are going to have to document your sister's pains from the date of the accident until her treatment, these two months later.
#6. Figure out what the jurisdictional limits are for your local small claims court, and then figure out what the damages are for this claim. If the damages are not too much more than the jurisdictional limits, then I would consider a small claims court action versus the tortfeasor. No ATTORNEYS are allowed in small claims court unless with specific motion and order of the court, so this is something you can handle on your own.
AS for how the company will want to handle this should they decide to pay, I would anticipate them to fight, so you will need to get on a good relationship with the body shop owner at the outset to make sure that all damages are covered. I would also ask the body shop owner if he makes arrangements for rental cars, and then leave it to him to obtain authority from the adjuster to give you a rental car. You are entitled to a rental car allowance, IRRESPECTIVE OF WHETHER OR NOT YOU EVER RENTED A CAR. Hence, try for a rental allowance from the date of the accident.
I trust that my 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
