QuestionQUESTION: About a couple of weeks ago, another driver hit me in a parking lot. My car was parked all the way near the back half of the parking lot, so there were no other cars surrounding it, just empty parking spaces. (This parking lot is huge and so, while I was in the back half of the lot, I was still a couple hundred feet away from the end of the aisle.) I was pulling forward out of my parking space and the other driver simply wasn't paying attention at all and was cutting through parking spaces and wound up hitting me. The damage to my car is on the front passenger side door and the front fender, where it meets the door frame, and the damage to the other driver's car is on the front bumper near the driver's side. I immediately called the police and an officer came, but then I had learned, if there are no injuries and towing is not involved, they do not write a police report. I couldn't even file one myself for the same reasons.
My insurance company didn't want to pursue a claim on my behalf because they told me it would be a very difficult case. I really felt like they weren't on my side and were very unhelpful. I learned from the insurance companies that the other driver is claiming that he was about to put his car in park in the space next to mine when I hit him. However, I took several pictures at the time, and his car is no where near being in a parking space. He had to come out into the aisle to hit me, so his car is too far forward, and he's too far over to one side, crossing the line of the other parking space. In addition to this, the damage to our cars doesn't consist of scratches. I have a huge dent in my door along with paint from his car. There was no paint transfer from my car to his, and the dent in my car is pretty sizeable. The damage alone, I feel, completely contradicts the other driver's story.
When I spoke with his insurance company, they initially sent out an appraiser to look at my vehicle, who estimated the damage to be around $2,500. Then they asked me to fill out a form and get an estimate at a repair shop of my choosing. I wound up getting three separate estimates and provided them with all of them, sighting the lowest estimate as the shop I would take my car to (that estimate was around $1,900). I did all of this very promptly and was extremely cooperative. I also felt fairly confident that they would accept liability, given the fact that their policy holder's statements weren't matching up with the damage and the pictures at all.
A few days ago, I spoke with his insurance company again to check on the status of the claim (I have been contacting them regularly since I filed the claim and they had kept telling me they were waiting on a written statement from their insured). That rep told me she would be sending me a denial letter because they had conflicting statements. I asked her why they weren't considering the evidence involved and she simply repeated they had conflicting statements from us. (This rep has stated that I was in the process of backing my car up almost every time I've talked with her and I've had to correct her.) I asked to speak with her manager and she instead eventually transferred me to a supervisor.
The supervisor explained initially that their driver was in the driving lane and so he had the right of way. This was obviously not the case, so I corrected her. Then she changed her story to say that since I lived in Maryland, this is a case of contributory negligence. She explained to me that since my car and not entirely cleared the parking space, I did not have complete control of the driving lane, so I contributed to the accident. She stated this was the reason the claim was being denied, which I thought was strange, as the claims rep never mentioned any of that at all in her own explanation.
Is this sound reasoning? I don't see how the fact that neither car happened to have the right of way automatically means that both parties are at fault. There was nothing I could've done to prevent this accident and there is certainly nothing I did to cause the accident. The whole thing could have (and should have) been avoided by the other driver. If my car had been completely out of that parking space, the other driver still would have hit me in the side of my car. I am contemplating filing a complaint with the Maryland Insurance Administration since I feel this insurance company is really just trying to get one over on me, but I'm not sure if there would be support for the contributory negligence law that was sighted, even if it does seem ridiculous to me. I'm just worried that since I'm so inexperienced with dealing in a situations like this, that I'll miss a few clear opportunities of winning my case.
I'm clearly very upset about this, I never even believed the other driver would lie about the situation. I'm an extremely cautious driver and I'm obsessive about my car. I've never had to experience something like this, so I would sincerely appreciate any help that you would be willing to offer.
ANSWER: Hi Jane,
It is true that some states have what is called "Contributary Negligence". That means that even if you are only found to be 1% at fault, you can not collect against the person who is 99% at fault. You should verify that this is the case in your state by contacting a personal injury attorney just to ask the question.
Do not bother with the insurance commissioners complaint. They do not get involved in issues of liability or amounts of payments. They only can assist if the insurance company is violating an insurance law or regulation or if they are not abbiding by their own insurance policy.
In this case the only chance you have of winning is to file suit against the other driver. You will need to prepare your case in details with photos, perhaps drawing a scene diagram and developing questions that you will ask the other driver to try to catch him in lies. Then it will be up to the judge. If the judge agrees and finds in your favor, then his insurance company will have to pay your claim.
I hope this helps
Richard Hixenbaugh
---------- FOLLOW-UP ----------
QUESTION: Thanks for your response!
I think I will try to meet with a lawyer for a free consultation to find out whether the insurance company has any grounds for using contributory negligence to deny my claim, based on their explanation that I wasn't entirely out of the parking space. Right now, I feel like I would have a strong case against the other driver's insurance company, but I suppose I should look into this more to make sure there aren't some strange laws that would allow the insurance company to slide by with this.
AnswerHi Jane,
Any case you would file would be against the at fault driver, not the insurance company. It is the driver that is at fault and also is the one who owes you the money for the damage. You are only dealing with the insurance company because they are acting as his representitive. When you can not reach an agreement with the representitive hired by the responsibility party, then you would file suit directly against the responsible party.
I hope this helps
Richard Hixenbaugh
