QuestionQUESTION: its a 4 lane road 2 going west and 2 going east. I was going west with the flow of traffic in the far lane closest to the curb. As i come up to a green light a truck was turning left and a car was behind it waiting a car going east bound wanted to turn into t parking lot and the car that was waiting waived her on to go and as i was coming up she hit me....
ANSWER: Hi Anthony,
The driver who hit you is at fault. You can claim versus her insurance. If she has no insurance, then use your own Uninsured Motorist coverage (UIM).
The reasons are two: first and foremost, it is the duty of any driver to wait until it is clear before moving her car. It is not a legal excuse that someone waved her through. It is her duty to proceed with caution inasmuch as anyone can see that the "waving driver" has ONLY control over her one lane. She is just saying: "go ahead in front of me; I will let you pass".
She is NOT in any way guaranteeing that the way is totally clear across all lanes to her right.
The second reason to make the claim versus the driver who hit you or your UIM is that IF there is a claim versus the waving driver, then let the insurance company pursue it, NOT you.
Best wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: First off thanks for responding to my question. I got the police report and it states at the end of it that unit 1 felt that unint 2 (me)was seeding as well as the person who waived her on said the same thing. now my question is cause her insurence company is saying that she is not all at faught cause of the speed issue that means she must of seen me comming and tryed to make it. I will let the companys fight over it i just think somehow im going to get the shaft on this. Cant the person who wavied her on be just as much at faught.
AnswerAnthony, this is NOT as bad as you think IF YOU TAKE ACTION TO FIGHT IT.
Here is what will happen if you do not fight against that police report. Your company will count this as an "AT-FAULT" accident and then they will raise your premiums.
Your state insurance commissioner http://www.settlementcentral.com/links.php
has established the grounds by which insurance companies are allowed to increase rates if the insured has caused an accident.
You need to get someone in that office to explain to you what the standard is and how you can go about fighting the company for declaring this to be an at-fault accident.
Then FIGHT that designation with full force so that you can avoid having to suffer an increase in your premium for the coming years.
THE POLICE REPORT IS NOT AN ADMISSIBLE OPINION AS TO FAULT. Neither party can admit the police report into evidence for the purpose of proving negligence from the officer's opinion. After all, his opinion is based upon hearsay, since he was NOT a witness to the accident.
Therefore, let’s agree that the ticket handed out by the officer can be useful most of the time in ascertaining fault, but in fact, the officer’s opinion of fault means NOTHING in court. It is NOT even admissible evidence of fault inasmuch as the officer was not a witness to anything, and her opinion of fault IS NOT ADMISSIBLE inasmuch as it is based upon hearsay evidence of the people involved. Hence, both drivers are free to dispute the opinion of the officer.
You can write to me again if you need more arguments on that point.
MORE IMPORTANTLY, SPEED ON YOUR PART IS NOT A DEFENSE TO THE WOMAN FAILING TO YIELD THE RIGHT OF WAY. THE OFFICER IS WRONG ABOUT THAT.
NEXT, let’s look at the most misunderstood defense that adjusters try to use: excessive speed on the part of THE INNOCENT VICTIM (that is YOU) will NEVER excuse the favored driver from failing to yield the right of way. Speed is usually is raised as a defense by the tortfeasor’s adjuster in the following way: “The excessive speed of the claimant’s car deceived her and she cannot be held totally to account for this accident; that oncoming speeding driver must also be held to account since his excessive speed was the real precipitating factor in this accident.”
There are only a few ways that you could be negligent, and you ought to be able to fight them, WITH ONE EXCEPTION: the allegation of excessive speed. That exception is when the other side is saying you are partially at fault because you were speeding and your speed deceived the other driver such that she was not able to make a reasoned choice. Hence, they will claim that you are partially at fault. If this is their game, then please write to me again and I will let you know how to defeat that claim.
In brief summary the allegation of excessive speed as a defense (i.e. she says that her defense to pulling out in front of you was your excessive speed fooled her) is ONLY VIABLE in ONE circumstance. And that is if there is a point where she can see you, then because of a dip in the road or some obstruction such as vegetation, you are hidden from her view for a bit, but then you pop out into plain sight just before the accident. Hence, your speed can then be used to explain why she failed to yield the right of way.
But that is the ONLY case in which excessive speed can be used to explain away the tortfeasor’s failure to yield. If she could have seen you with unobstructed sight lines for thirty or forty yards, then she just CANNOT use the defense of excessive speed because the law says that she MUST keep a vigilant lookout before she pulls out into traffic. And she is under the burden to make sure that it is safe BEFORE she ever starts to move her car.
FINAL TOPIC: 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
