QuestionHello Doctor Settlement,
I live in Illinois. I went to an auto shop to make a complaint about the damage done to my wheel from previous flat tire repair. I parked in front of the office entrance since there were no parking spaces available at the time. Came back out and got into my car and started the car that's when a mechanic was backing out a car and hit my driver side door. Insurance was filed and damage was appraised, the claim handler told me that it would be a 50/50 split. They accused me of parking in a no parking zone, which I said that I was unaware of it. I told her that I will not settle for 50/50, then she told me that she'll have to investigate further (going to the scene and take some pictures). She didn't contact me for 2 weeks. I called her many times and left messages, finally she returned my call. She told me that she's still investigating, waiting for the pictures to be taken. She asked me again if I will consider the 50/50 settlement.
1)Is she basically dragging the claim??
2)Illinois is a comparative negligence state...Am I really 50% at fault in this situation??
3)I also found out that one of the mechanic (witness I guess) lied to the insurance company stating that he told me to park my car in a parking space, but I refused to.
4)Should I file with my own insurance company, pay a deductible to fix my car first, and let them deal with the other insurance company??
5)What should I do now to prevent dragging this claim on further??
Thanks in advance for your assistance.
David
AnswerHi David,
Sometimes the easiest things become so complex, don’t they? Here is something that in a perfect world is really easy to fix. But we always seem to involve any number of extra considerations, such as your parking in a wrong spot.
Let’s start with the basic facts as you present them. It is true that you should have realized this was a wrong spot if you looked around and took in the lay of the land so to speak. It would not have taken too long to figure out that this was not an authorize place to park. Hence, your parking there, while not illegal per se, will be a factor in assessing liability.
But is it 50% negligence? I do not think so. While you should have seen that the area would be used by the mechanics to exit, you were THERE, ALREADY IN POSITION, and the mechanic who was moving the car had the duty to make sure that the way is clear before he moves one inch.
Shove that back at the adjuster. Tell her that the basic rule of the road is that no one can move a vehicle until and unless he makes sure that it is safe to do so. Hence, the PARAMOUNT DUTY was upon the mechanic, not you. The one who is moving his vehicle has the TOTAL RESPONSIBILITY to avoid an accident. He has the DUTY TO SEE WHAT IS THERE TO BE SEEN. And hence, he is charged with the duty to see your vehicle and if it is in the way, to go and ask you to move it.
I would not agree to anything over 5% liability, AT THE VERY MOST. Your parking there does not excuse his negligence in failing to ensure that it was safe to move. Who cares whether or not someone told you not to park there? It makes no difference since the one who is moving his car must look before he moves an inch. Think of it like a charging foul in basketball. You are the defense and you have your position. He wants to move into your space, he is going to get tagged with a foul.
OK, now that I have you ready to fight for what is right, where do we go now? I would only respond in writing, as I suggest below. I would make the argument and give her a deadline to respond.
Meantime, if this adjuster looks like she is going to make a career out of checking this thing out, go ahead and use your own company and they will go against the auto shop. My only worry about that is you might get tagged with an “at-fault” accident, and hence your rates will increase.
Your company is supposed to defend you and to fight for what is right. But ask yourself just how hard they will fight. If the other side offers them a 50/50 split, why would your company refuse that since then they can raise your rates because you caused an at-fault accident? Neat trick, huh?
Two ways around that. First is using the office of your insurance commissioner http://www.settlementcentral.com/links.php
Hopefully he has established rules for determining what can be classified as an “at-fault” accident for purposes of raising your rates. Second, there ought to be a method to impose a duty to defend you, as opposed to capitulation, especially since when your company agrees to a 50/50 split, you will pay in the end.
The second way around this, and also a way to speed up the adjuster if she gets stuck on some other inane percentage, is to just sue the tortfeasor in small claims court. It does not cost more than $35 to file usually, and since attorneys cannot appear, the company is more likely in this case to just toss in the total owed to you.
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FINAL TOPIC, David: 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
