by montagcl » Thu Jul 02, 2009 04:04 am
Driver "A" lost control of his vehicle on a curve on an Ice slick road and driver "B" coming in the opposite direction slamed into driver "A". Driver "B" suffered a head injury. Although his airbag worked, he wasn't wearing his seat belt at the time. This happened in NY state, which has a manditory seat belt law. Whose insurance will be responsible for Driver "B's" injury and can he sue for his injury?
Posted: Thu Jul 02, 2009 10:51 am Post Subject:
montagcl,
Good morning, and welcome to the community..
Whose insurance will be responsible for Driver "B's" injury and can he sue for his injury?
You don't say exactly what A did other than lost control. Of course any person can sue for anything, but this likely won't be necessary. If driver A was across the center line, or negligent, then A's policy will cover B's injury. The fact that B wasn't wearing a seatbelt 'may' (and I can't stress 'may' enough), get B some comparative or contributing negligence percentage for his own injury but it would be a minor amount. I have handled claims in the past and successfully argued 5-10% negligence attributed to the injured non-seatbelt wearing party, (meaning they caused or were responsible for that percentage of their own injury)..but never the entire amount.Let me ask you a couple of questions..
How long ago did this happen?
Did you immediately turn this into your carrier?
Have you been served with suit papers?
What exactly did 'A' do, (ie on 'B's side of the road at impact maybe)
Do you think that A shouldn't bear any (or all) of the responsibility for B's injury?
Posted: Thu Jul 02, 2009 12:33 pm Post Subject:
Hi montagcl..
I guess it's too tough to prove who's at-fault under such circumstances.
Do you have any witness for this incident?
What does the police report say?
Steven
Posted: Thu Jul 02, 2009 01:12 pm Post Subject:
Case law in some states allow for negligence to be placed against the person for not wearing their seat belt, others don't. I'd think the only way to know for sure is to find someone in NY who's been up against this type of situation. I don't think you'r going to find that here.
Posted: Thu Jul 02, 2009 03:06 pm Post Subject: case of the seatbelt
this accident happened three months ago. Police report does not explicitly state who was at fault, but states that upon "A" losing control he struck vehicle "B" which caused extreme damage to both vehicles. I think that it is implied that Vehicle "A" was partly on Vehicle "B's" side of the road on impact. Road conditions were icy. The incident was reported the very same day. Driver of Vehicle "A" was only person in car wearing a seat belt and walked away from accident. No one in vehicle "B" was wearing a seat belt - the driver and his three passengers. The driver was the only one injured. The driver was the only one sent to the hospital. Although he was conscious he had a head and foot injury. I think that driver "A" should be approximately 60% responsible in this case. A 5% to 10% negligence on Driver "B" would be an insult to the law. Driver "B" wasn't even driving his own vehicle. All of the people involved were in their early to mid twenties.
Posted: Fri Jul 03, 2009 01:23 am Post Subject:
A 5% to 10% negligence on Driver "B" would be an insult to the law. Driver "B" wasn't even driving his own vehicle. All of the people involved were in their early to mid twenties.
The age of the driver and the fact that he was not driving his own vehicle does not come into play when detemining liability. The fact is car "A" crossed into driver "B"'s lane and caused the accident. Like Lori said, I don't see more then about 5% on car "B", since if it were not for car "A" causing the accident who is to say that "B" would have ever been hurt for not wearing their seat belt.
Posted: Fri Jul 03, 2009 02:15 am Post Subject:
but states that upon "A" losing control he struck vehicle "B" which caused extreme damage to both vehicles. I think that it is implied that Vehicle "A" was partly on Vehicle "B's" side of the road on impact. Road conditions were icy.
Sounds pretty clear to me that 'A' will be at fault for the loss...if you lose control of your vehicle regardless of the streets conditions (ice, snow, water)...and strike another vehicle that is legally traveling...you're at fault. If 'A' lost control and struck 'B' and 'B' was in control of his vehicle...clearly 'A' crossed into 'B's lane of travel..A 5% to 10% negligence on Driver "B" would be an insult to the law.
How do you figure that?I think that driver "A" should be approximately 60% responsible in this case.
How would that insult the law and 40% not? Or is your arguement that you were the majority at fault, but just alittle over half? I'm trying to figure out your logic...Driver "B" wasn't even driving his own vehicle.
How would that change the situation at all?All of the people involved were in their early to mid twenties.
Or this? Whether 'B' was driving his car or his mother's makes no difference at all, nor does his, and his occupants ages..How do you see that these affect the liability determination at all? :?I believe that NY is a no-fault PIP state...now I don't know what the thresholds are, or how serious 'B's injuries are..if they eclipse the threshold then your liability policy should come into play..Here's what I've found on the NY PIP law..
Because of New York's No-Fault law, lawsuits due to auto accidents can be brought only for economic losses that exceed No-Fault benefits and for non-economic damages (such as pain and suffering) only if a "serious injury" (as defined in the Insurance Law) is sustained.
Now the law does list some things that can cause you to become ineligible, but not wearing a seat belt is not one of them..
a person will be ineligible for No-Fault benefits, if:
driving while intoxicated or impaired by use of a drug that contributes to the accident;
intentionally causing his or her own injuries;
riding an all terrain vehicle (ATV) or a motorcycle as operator or passenger (a pedestrian struck by a motorcycle or ATV is covered);
injured while committing a felony;
injured while in a vehicle known to be stolen; or
an owner of an uninsured vehicle.
I believe the min. amount of required PIP is 50k in NY
With PIP coverage, in the event of an accident, regardless who is at fault, this insurance will pay for the cost of your injuries. All drivers must be aware, if you are injured in a car accident, PIP will prevent drivers from suing another person for damages - except in the case of serious personal injury or the result of wrongful death from the accident.
Well from what I have found from my research...the injured party cannot come after you or your policy unless one of the following occurs:
Here is the definition from Section 51o2(d) of the NY Insurance law:
“Serious injury” means a personal injury which results in
death;
dismemberment;
significant disfigurement;
a fracture;
loss of a fetus;
permanent loss of use of a body organ, member, function or system;
permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system;
or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
So I guess the entire question is moot unless 'B' has one of the above...How seriously injured is 'B'?
Has your carrier paid 100% of 'B's physical damage (vehicle) claim?
Posted: Fri Jul 03, 2009 03:37 am Post Subject: thanks for your help
You have made some very logical conclusions. Its sometimes difficult to remain objective when you are even
relatively involved.
Posted: Fri Jul 03, 2009 06:15 am Post Subject:
Hi montaqcl..
I think that it is implied that Vehicle "A" was partly on Vehicle "B's" side of the road on impact.
What there anything mentioned in the report regarding the position of vehicles?
I'm asking since if its your belief then others may not agree.
Steven
Posted: Fri Jul 03, 2009 11:04 am Post Subject:
Its sometimes difficult to remain objective when you are even relatively involved.
You are 100% correct montagcl, but it takes a wise person to see that, and an even wiser one to admit it...I'm impressed!Posted: Fri Jul 03, 2009 01:16 pm Post Subject:
Hi montaqcl..
Road conditions were icy.
Was it mentioned in the police report?
I think that driver "A" should be approximately 60% responsible in this case. A 5% to 10% negligence on Driver "B" would be an insult to the law.
Did driver "A" agree that he'd lost control?
Steven
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