QuestionHello Sir,
My name is Kyle Murray. A few months ago i was involved in an accident. I was in a parking lot in Oroville California and I made a left turn heading into one of the parking aisles when I was struck head on by another driver coming in off of the street. She was going 25 to 30 miles an hour. Neither of us was seriously injured (I scraped my knee). The police report does not state either of us at fault (the police officer said that because the accident took place in a parking lot it was private property and he wasn't allowed to determine fault). It is a somewhat complicated story, but a few days later I found out I was uninsured for the accident. I have since acquired proper insurance. The other drivers insurance company puts me at 100% fault for the accident. I've told them that the other driver was speeding but the claims adjuster has disregarded my information twice now and sent the case to credit collections. The credit collector has told me that fault is irrelevant in this case because i was uninsured. Furthermore, he has told me that if I don't cooperate he can and will have my license suspended. My questions are:
Am I automatically at fault for the accident for driving uninsured? Is this true if I was driving in a parking lot?
California state practices pure comparative negligence right? So, is any party operating in negligence (left turn in front of oncoming traffic, speeding) partly at fault for the accident?
Can the credit collector really take away my license?
If it would be easier for you to answer the question by phone my number is . I thank you for your time and effort.
Sincerely,
Kyle Murray
AnswerHi Kyle,
Your questions are all pretty much straight-forward at first blush, but there are two twists in those topics that I want you to be aware of. Let's take the questions the order you asked.
#1. "Am I automatically at fault for the accident for driving uninsured? Is this true if I was driving in a parking lot?"
MY ANSWER: Absolutely NOT!! Your having insurance is of no relevance whatsoever in determining fault. You MUST use that fact in rebutting the collection person to show how little she knows about the claim she is trying to collect on. NOTE: do not waste your time on the phone: communicate only in writing.
Liability will be determined by the facts of the case, and no topic of insurance will ever be introduced into that determination.
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#2. "California state practices pure comparative negligence right? So, is any party operating in negligence (left turn in front of oncoming traffic, speeding) partly at fault for the accident?"
MY ANSWER: You are correct. She is AT FAULT at least 50% or more by your statement of facts. She was speeding because she had to rush into the lot since she cut off another driver (my supposition). Did she not make a left turn into the lot? What other reason was there for her to speed?
The speed limit in the lot is set by conditions. Sunday morning you can go 20 MPH with no problems whatsoever. But let's take the time of day you were there: NO ONE can go that fast thru the lanes without endangering others.
I do not see how you were negligent at all, so I would fight to get three-fourths of the negligence on her, and thus make my own claim versus her insurance for property damages and injuries.
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#3. "Neither seriously injured (I scraped my knee)."
MY ANSWER: I would see a doctor and make sure that any soft tissue injuries are taken care of. You should make your own personal injury claim versus her insurance if you sustained any injury that caused you pain for even a week or two.
If they blow you off, then consider making a small claims court filing, BUT ONLY IF you think that they will not counterclaim for the property damage they suffered. If you are able to block them from taking your license (see below), then you may not wish to bring a lawsuit since that would give them incentive to sue for the damages they paid out.
But be forewarned to have at least ONE medical consultation regarding your soft tissue injuries since that will support a claim for bodily injuries should they later try to sue you for the property damage.
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#4. "Can the credit collector really take away my license?"
MY ANSWER: Yes, provided that they file the proper affidavit with the state Department of Financial Responsibility. Here is the chapter of the California code dealing with uninsured motorists in accidents: http://www.dmv.ca.gov/pubs/vctop/vc/tocd7c2a2.htm
Plus, California does have its own duty to make a report. Ask about this topic as it appears that one must file DMV's Traffic Accident Report (form SR-1) within 10 days of any accident, if there is more than $750 damage to anyone's property, any injury, or death – whether or not you are at fault in the accident. http://www.dmv.ca.gov/pubs/vctop/d07/vc16000.htm
I would consult a legal services attorney and ask about two possible defenses to this. First, see if there is any time during which the "victim" must file the affidavit or proof of damages. In some states, if they go past 90 days without filing the affidavit of proof, then they get no right to suspend the tortfeasor's license.
Second, consider putting that money into a blocked account as provided by statute and making them sue you. Let's say that the damage claimed is $1,500. Rather than getting your license suspended, borrow that money and deposit it into a blocked account as provided in the statute, and then if they file suit and win, they get paid the amount of their judgment. If they fail to file suit or if you prevail, you get BOTH your money back PLUS the interest earned. http://www.dmv.ca.gov/pubs/vctop/d07/vc16378.htm
In summary, go to the state or county bar association and ask about a lawyer referral service wherein the lawyers will volunteer to speak with people for a payment of some nominal fee, such as $40 an hour. That person could help to find an exception to the statutes that would allow you to avoid the harsh results of the financial responsibility statutes.
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Learn how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
FINAL TOPIC, Kyle: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
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
