by techgamer » Thu Apr 29, 2010 09:54 am
Description of the incident:
I was heading east on a road right by my apartment and I signaled a left turn,
indicating that I was trying to make a u-turn (which I believe is legal in
California - residential area).
I was heading East on a street in Los Angeles by my apartment and plaintiff was also heading East (when the accident occur)
I had checked every single side of the intersection, and did not see any cars.
I signaled left and made a u-turn but before I could complete my left turn, a car came from behind me (heading east) and struck her car.
I believe she tried to get pass me because she would have seen that I was making a u-turn, I assume that she was probably more than 200 ft before the intersection, because i saw that all was clear.
She was either trying to get pass me, or was unable to stop on time because she did not see me.
Technically I am not sure if I am "at fault" here or if both of us were at fault, I know that people can
manipulate the situation around, but if I use the DMV guide it seems as though I
followed all the procedures.
I asked the opinion of two attorneys who one believed I was at fault, and the second said that I wasn't.
My insurance company did not pay for the other person's damages because they believe I was not at fault, and I am sure that plaintiff truly believes I'm at fault.
Just yesterday, I received a citation judicial (court summons) informing me that
I was being sued by this plaintiff because my insurance company decided that the
other driver was at fault and did not pay them.
They are suing for
1. Property Damage
2. Personal Injury
Plaintiff has reported suffered:
a. wage loss
b. loss of use of property
c. hospital and medical expenses
d. general damage
e. property damage
f. loss of earning capacity
g. Other damage: According to proof at the time of trial.
They are seeking: Compensatory damages.
Note: Personal injuries are absolute nonsense. It was only a dent on her right
rear door (she's driving front left of course, and no other passengers were
there). IT was a residential area, so we quickly stopped and exchanged
information. We were both being courteous, and she drove and went her own way,
completely unhurt.
She is being represented by Frank Y. Ariel, a auto accident lawyer.
As of now, I have sent my insurance company the documents, and they are forwarding it to the ligitations department.
I just wanted an outside opinion/advice on:
1. if the description of what had happened seems as though I am at fault (legally), or if both parties are at fault or if the other person is at fault. They are suing for negligence, but I have an excellent driving track record and while I can admit when it is my fault, the situation is very much undetermined and unclear. I made the u-turn because I verified that no cars were coming. However I do not know who is the bad car here, in legal terms.
2. I've already given my insurance company my summons document and they have forwarded this to the litigation department.
3. If it shows that I am at fault, can my Insurance company settle this without court appearance? Perhaps to the other company instead of me? I was unaware that the plaintiff was going to sue and thought that my insurance company had handled everything.
4. If I was at fault, is there any chance at all that I would win the case? And I do not know how the fault will be determined.
5. I know that all she needed to fix was her right rear door, which was dented. But she was suing for personal injuries, wage loss, damages and tons of other things. Her lawyer also claimed that most people would rather settle it with his clients vs. going to court. If anything, I believe that the insurance companies should have handled this, or she could have sued my insurance company, but is obviously seeking more monetary from me.
6. What I'm trying to get out of this? Peace of mine, to have the situation settled without anyone having to go to court, but if I am supposed to go, then I would like for me to win the case, and a great lawyer with at track record that can do this, even if I am at fault. I do not need the plaintiff's money, I am not seeking for anything. But resolution. And if that involves achieving monetary, and also a counter sue for all the things she sued for that were outrageous (personal injuries, loss of wage? - Clearly its due to the economy and she's trying to simply work her angles here), and emotional distress (within the boundaries).
Let me know what you think. I hope you can help answer my question and hope that the situation isn't too serious.
P.S: Her lawyer did state that this amount will be in access of $25,000 (I don't understand why if its just to fix her door, again, if I was at fault, and if my insurance company did not pay for it because of that).
Thank you so much!
my policy coverage for bodily injury is $50,000 to $100,000 I believe and $25,000 for damages.
Used to be higher when the claim was filed (bodily injury up to $300,000 and $50,000 for damages), but I don't know which one the insurance will choose, if they had to.
Please let me know asap!! Thanks!
NOTE: If there's anyway insurance company can just settle this with her, or through a mediator, where I'm not involved with the matter, that would be even better.
I was heading east on a road right by my apartment and I signaled a left turn,
indicating that I was trying to make a u-turn (which I believe is legal in
California - residential area).
I was heading East on a street in Los Angeles by my apartment and plaintiff was also heading East (when the accident occur)
I had checked every single side of the intersection, and did not see any cars.
I signaled left and made a u-turn but before I could complete my left turn, a car came from behind me (heading east) and struck her car.
I believe she tried to get pass me because she would have seen that I was making a u-turn, I assume that she was probably more than 200 ft before the intersection, because i saw that all was clear.
She was either trying to get pass me, or was unable to stop on time because she did not see me.
Technically I am not sure if I am "at fault" here or if both of us were at fault, I know that people can
manipulate the situation around, but if I use the DMV guide it seems as though I
followed all the procedures.
I asked the opinion of two attorneys who one believed I was at fault, and the second said that I wasn't.
My insurance company did not pay for the other person's damages because they believe I was not at fault, and I am sure that plaintiff truly believes I'm at fault.
Just yesterday, I received a citation judicial (court summons) informing me that
I was being sued by this plaintiff because my insurance company decided that the
other driver was at fault and did not pay them.
They are suing for
1. Property Damage
2. Personal Injury
Plaintiff has reported suffered:
a. wage loss
b. loss of use of property
c. hospital and medical expenses
d. general damage
e. property damage
f. loss of earning capacity
g. Other damage: According to proof at the time of trial.
They are seeking: Compensatory damages.
Note: Personal injuries are absolute nonsense. It was only a dent on her right
rear door (she's driving front left of course, and no other passengers were
there). IT was a residential area, so we quickly stopped and exchanged
information. We were both being courteous, and she drove and went her own way,
completely unhurt.
She is being represented by Frank Y. Ariel, a auto accident lawyer.
As of now, I have sent my insurance company the documents, and they are forwarding it to the ligitations department.
I just wanted an outside opinion/advice on:
1. if the description of what had happened seems as though I am at fault (legally), or if both parties are at fault or if the other person is at fault. They are suing for negligence, but I have an excellent driving track record and while I can admit when it is my fault, the situation is very much undetermined and unclear. I made the u-turn because I verified that no cars were coming. However I do not know who is the bad car here, in legal terms.
2. I've already given my insurance company my summons document and they have forwarded this to the litigation department.
3. If it shows that I am at fault, can my Insurance company settle this without court appearance? Perhaps to the other company instead of me? I was unaware that the plaintiff was going to sue and thought that my insurance company had handled everything.
4. If I was at fault, is there any chance at all that I would win the case? And I do not know how the fault will be determined.
5. I know that all she needed to fix was her right rear door, which was dented. But she was suing for personal injuries, wage loss, damages and tons of other things. Her lawyer also claimed that most people would rather settle it with his clients vs. going to court. If anything, I believe that the insurance companies should have handled this, or she could have sued my insurance company, but is obviously seeking more monetary from me.
6. What I'm trying to get out of this? Peace of mine, to have the situation settled without anyone having to go to court, but if I am supposed to go, then I would like for me to win the case, and a great lawyer with at track record that can do this, even if I am at fault. I do not need the plaintiff's money, I am not seeking for anything. But resolution. And if that involves achieving monetary, and also a counter sue for all the things she sued for that were outrageous (personal injuries, loss of wage? - Clearly its due to the economy and she's trying to simply work her angles here), and emotional distress (within the boundaries).
Let me know what you think. I hope you can help answer my question and hope that the situation isn't too serious.
P.S: Her lawyer did state that this amount will be in access of $25,000 (I don't understand why if its just to fix her door, again, if I was at fault, and if my insurance company did not pay for it because of that).
Thank you so much!
my policy coverage for bodily injury is $50,000 to $100,000 I believe and $25,000 for damages.
Used to be higher when the claim was filed (bodily injury up to $300,000 and $50,000 for damages), but I don't know which one the insurance will choose, if they had to.
Please let me know asap!! Thanks!
NOTE: If there's anyway insurance company can just settle this with her, or through a mediator, where I'm not involved with the matter, that would be even better.
Posted: Sat May 01, 2010 09:07 am Post Subject:
I really hope I do not have to incur any compensatory loss or fees here
Well, everything you are being sued for = compensatory damages -- the value of the plaintiff's losses. You are not being sued for punitive damages. If ultimately found liable for the damages, your insurance will pay the claim up to the limit of liability in your policy.
Basically, you need to calm down! Regardless of when the complaint was filed with the Court Clerk, the clock did not start ticking until you were served. You don't state how you were served. Potentially, service could be faulty, and the clock would not be running yet.
California law provides for 30 days to file an Answer to the complaint. In Los Angeles County, the filing fee for such a response is currently $340. Your insurance company's contract with you obligates them to defend you in this circumstance, which means they pay the filing fee and the fees for any motions they choose to make (minimum $40 each). You should bug the company to keep you informed of the status of the case, and you can always go the Courthouse where the complaint was filed and visit the Clerk's office and ask to review the case file, to see if an answer has been filed. Who knows, maybe it was filed in the wrong jurisdiction, and the lawyer will have to start all over again.
But don't expect the insurer to fail to file an answer to the complaint. To do so would result in a default judgment against you, and they would HAVE to pay the award handed down by the Court. So they are not going to let that happen. To be on the safe side, however, you should mail a copy of the Complaint that was served on you to the claims department or the legal department, and you should send it certified with a return receipt or express mail, either of which creates a trackable record of delivery, preventing the insurer from claiming you never notified them of the suit.
You gave the insurer the freedom to settle a claim on your behalf with or without your advice or consent when you accepted their policy -- they tell you that in the policy. Even if they don't believe you are liable for the damages, they can settle the case without your knowledge, if they believe that's a less costly avenue than to litigate. And it would probably not go down as a chargeable accident on your claim record.
A "Case Management Conference" is just a mandatory preliminary step in a case such as yours before a first appearance before a judge in court -- it often resolves the matter without the interference of a judge. If it happens, you will probably be required to appear, and you may never even say a word. You have nothing to fear from the plaintiff, and I don't understand your reluctance to want to see her face-to-face.
You haven't indicated in any of your posts the exact dollars of damage that have been specified. How much was the alleged damage to the plaintiff's vehicle? How much were her "lost wages"? What injuries does she claim? You really have nothing to lose here, I don't believe. I would be willing to bet that the claimed damages are just under your policy's limit of liability. The lawyer knows what it is and that he would never get more than that, so why even try in a shoddy case such as this? They thrive on giving false hope to their clients, and rely on insurance companies to write checks and ask questions later.
In our litigious State of California, attorneys take cases they know they cannot win, file complaints they know are entirely baseless, and hope that insurance companies flinch and offer to write a check. They collect their 30%-40% for a few hours of effort (their complaints are already in the computer, they just fill in the blanks). If no offer is made to settle before trial, and the plaintiff goes forward and loses, oh well.
But if the insurance company offers a settlement and the plaintiff is not happy with the offer, when they say to the lawyer, "Let's go to trial," then their lawyer tells them, "Uh . . . if we go to court and lose, you'll owe me for the filing fee, the deposition fee, my time to appear in court," and on and on and on, trying to encourage their client to take the offer so they can collect their "contingency fee".
When the client says, "But you told me if I don't win I don't have to pay," the lawyer replies, "Well, in this case they made and offer, and in our contract, if they make an offer and you refuse to accept it, and then you lose in court, you have to pay me for my time and costs."
Just like people don't read their insurance contracts, they don't read the contracts they sign with their lawyers, either. The tort lawyers have it figured out fifty different ways to Sunday how not to lose any of their money on a money-losing case. And if their client doesn't pay, guess what? They take them to small claims court! How's that for a sharp stick in the eye?
Like those Larry H Parker ads on TV for the last 25 years, everyone thinks they can get "$2.1 million" for nothing. They never show you that the guy has no legs to be able to ride his motorcycle again. It's pure misrepresentation on the part of lawyers . . . way beyond what almost any insurance agent has ever dreamed of doing!
In one of your posts, you asked about hiring your own attorney. You could do that, but it's on your own dime unless the insurance company agrees to it in advance (which they almost never do -- no way to control the cost). So resist the temptation to go that route, it's a money-losing proposition for you.
You are also needlessly worried about your "assets or money being taken away". That's what you have your insurance for -- to transfer that risk of financial loss from you to the insurer. If you do lose in court, the insurance company simply pays up to their limit of liability. Only if the award exceeded that amount would you be responsible for anything.
So stop making yourself miserable over this. My guess is that you are probably well under age 30, have never even been to small claims court, this is your first traffic accident, and you just have no idea what to expect. Obviously, you've never been sued before.
You are freaking out for no good reason!
What you are experiencing happens hundreds of times each day throughout California and across the US. And what may also be happening is a bit of insurance fraud (claims for phantom "damages"), and if the insurer even remotely suspects that, they are obligated to turn the information over to the Department of Insurance for further investigation. Even if they pay the claim! (as often happens).
Go grab a beer (or other beverage of choice), sit down, and chill. Go get a massage to relieve the tension you've built up, then go to sleep and have pleasant dreams. This will all pass, and you'll probably never see the inside of a courtroom, or even attend a deposition. The ulcer you're doing a great job of trying to give yourself will have been in vain.
Posted: Sat May 01, 2010 06:04 pm Post Subject:
Hey Max,
That is certainly good news... (for the most part :) )
The damages weren't clearly stated.
It just said in access of $25,000 *unlimited*
Which included all sorts of things, including wage loss, loss of property, personal injury, damage to property and MORE (based on proof) - I may be forgetting some here.
I'm guessing that even if she wins and the award is given to her, it shouldn't really be in access of whatever my insurance's policy limits are. I don't know, but I find it impossible to be in access of $25, 000
If she wins or loses, am I able to also counter sue for giving me unnecessary stress or emotional damage, over something like this?
I probably won't waste my time, but want to know if that option is available...
Thanks again for the long response, it certainly did alleviate a lot of my worries.
Posted: Sun May 02, 2010 11:58 am Post Subject:
If she wins or loses, am I able to also counter sue for giving me unnecessary stress or emotional damage, over something like this?
In your response to the lawsuit, if you are not using the services of your insurance company for legal defense, you are free to countersue for anything you like. You'll have to cite specific "points and authorities" to support your claim -- easier said than done in some instances.
Whether you prevail is another matter. If you lose on the Plaintiff's suit, you will definitely not prevail in your counterclaim. The plaintiff could lose, and you could still not prevail in your counterclaim if the judge or jury does not find any merit to your claim.
I think your best course of action is to do what you've paid for . . . turn it over to your insurer and let them handle it. No need to pay for a private attorney, you definitely don't want to attempt to handle this on your own.
It just said in excess of $25,000 *unlimited*
This is one of three possible civil suit filings in California beyond the $7500 small claims limit (Limited, less than $10,000, Limited, $10,000-$25,000, and Unlimited, $25,000 or more). Each has a distinct effect on the progress of the case through the court system. The majority of "Limited" cases are expected to be disposed of within 180 days, and unlimited civil cases always require a mandatory case management conference prior to the first appearance in court, just to see if it's possible to avoid court at all by negotiating a settlement. But the disposition of an unlimited civil case could take years depending on the complexity.
The paperwork served on you must specify at least one "cause of action" (probably something like "negligent operation of a motor vehicle") and has to specify some certain amount of damages; the plaintiff cannot simply make a claim for an unlimited amount of money in all respects.
A more careful reading of the complaint will probably reveal language that lists certain dollar damages to the plaintiff's property ($1,000 for repairs to her vehicle, $500 for known medical bills), and may then seek an "unspecified" amount for unknown or undetermined medical expenses and the ubiquitous "pain and suffering" BS. And, of course, attorneys fees and expense.
This is the legal equivalent of "grasping at straws" that inflates the cost of auto insurance in CA by 100%, and the claims fraud that results in a "$500 tax on every person in California" as our insurance commissioners like to point out.
I'm guessing that even if she wins and the award is given to her, it shouldn't really be in excess of whatever my insurance's policy limits are. I don't know, but I find it impossible to be in excess of $25,000
Oops! Did you forget this is California? The land of fruits, nuts, and flakes? Juries are full of people with no more common sense than a box of rocks, and they have awarded tens of millions of dollars for the least meaninglful offenses. Not that this is likely to happen in your case, but who could say for sure? If you get enough people on a civil jury who have been abused by an insurance company, they could decide it's time to get even.
The plaintiff's lawyer will take just about any amount of money to "make the case go away." It's up to your insurance company to decide whether they want it to "go away" or if they want to fight it. If it's as cut and dried as you explain, and you were not in the least possible way at fault, the insurance company would be within its rights to drag this out for as long as it takes to annoy the plaintiff's attorney and make him go away.
They may do this by making a one-time only offer to pay just for the damage to the vehicle, even though the collision was not your fault, and nothing else -- take it or leave it. This is a losing proposition for the plaintiff, because it means she gives up 30%-40% of the money she needed to repair the car to her attorney. The attorney will advise her not to accept, but then he also realizes that his case is not very strong, and he'll encourage his client to accept the next offer that comes along which will give her enough money to pay for the repairs and pay the lawyer a few hundred dollars.
If it's truly a "slam dunk" in your favor (usually not), then the insurance company might tell the plaintiff's attorney at the case management conference to "take a flying leap and we'll see you at trial in a couple of years." If his case is really weak, the plaintiff's attorney's tune will change, and he might just drop the case and take his lumps.
So, again, just relax, keep breathing, enjoy your adult beverage, and keep checking with the insurance company about once a week to make sure they have responded to the lawsuit. Ask that you be sent a copy of the "conformed copy" of their Answer to the Plaintiff's Complaint as a courtesy. You have that right.
Posted: Wed May 05, 2010 07:54 pm Post Subject:
Thank you everyone for your response! I have a phone call scheduled in 10 minutes with the ligitation specialist will let you know how it goes
Posted: Wed May 05, 2010 08:25 pm Post Subject:
I received word.
They said that the plaintiff said that she had a knee injury, although we're not sure how that could have happened.
The plaintiff also said that was following behind me, and i swung a little bit to the right before making that left u-turn at the intersection.
Regardless, wouldn't that still mean that she did not stop when she saw me stop (as she was behind me) and came around to pass me, as I have not completed the U-turn.
My car damage = front left side.
Her car damage = right rear door
In addition, there are other stuff she's suing for including the property damage (which her insurance should have already covered) - unless there were more out of pocket, loss of wages, loss of earning capability (?), medical bills AND pain and suffering.
Right now, my insurance company is going to be speaking with the attorney again and trying to discuss the situation with him. I will follow up with them again on Monday at the latest. BUt they said that they will be sending me a conform copy when the answers are filed.
Thoughts?
Posted: Wed May 05, 2010 08:58 pm Post Subject:
she also said that she was honking at me, but she only honked right as I saw her coming and struck her car.
Posted: Sun May 30, 2010 10:55 am Post Subject: the truth; which usually lies somewhere in the middle
"I always tell people that there are two sides to every story"- One thing i was told years ago by a brilliant Claims VP is that there are three sides to every story- yours, hers and the truth; which usually lies somewhere in the middle." Most people are convinced things happened just the way they said- until proven otherwise- and they generally hold to their version. Often the story changes from the initial statement to subsequent recorded statements. Without knowing CA insurance laws- it sounds to me this is going to come down to he said - she said and may the better attorney win.
Posted: Sun May 30, 2010 01:05 pm Post Subject:
it sounds to me this is going to come down to he said - she said and may the better attorney win.
Exactly!
And that's the reason matters like this are best turned over to the insurance company. We pay our premiums, and ask our clients to pay theirs, and the company promises to defend us against third party claims.
In this instance, the original claim was tossed at arbitration as unable to determine fault. Then the "injured" party finds an attorney who waits until almost the last possible day to file a civil suit, two years after the incident, claiming injuries and other damages (apparently) not reported at the time of the accident, and the insured freaks out.
If the insurance company does not believe there is sufficient grounds to pay the original claim, they will usually put up a solid defense on behalf of the insured, and it costs the insured nothing out of pocket other than the premiums already paid.
It's their fight. Sit back, relax, and cooperate.
Hopefully the OP will return and let us know how this all turned out.
Posted: Wed Aug 04, 2010 08:14 pm Post Subject: Root Tree Damage
My neighbor's trees caused me $10,600.00 worth of damage to my block wall and pool deck. I spoke to two different renters about the problem with no response from the owner. In California small claims the limit is $7500.00. What alternative do I have to sue for the full amount?
Posted: Wed Aug 04, 2010 11:10 pm Post Subject:
If you are unwilling to sue in Small Claims Court due to the $7500 limitation, you are free to sue in Superior Court. Your filing would be "Limited Civil, Does not exceed $25,000" (since the choices are Does not exceed $10,000, Does not exceed $25,000, or Exceeds $25,000).
You can file "In pro per" and represent yourself, or you can hire an attorney to file the matter and represent you. The attorney will ask for 30% or more of whatever award you obtain, or will represent you for a fee plus expenses, which can be requested to be paid by the other party (it's up to the judge to allow or disallow the attorney's fees and costs -- if disallowed, you will owe the money personally).
If you are unfamiliar with the legal system, you would be ill-advised to represent yourself, as you must cite "points and authorities" that support your "cause of action", which ultimately must prove negligence on the part of the other party for you to prevail.
I spoke to two different renters about the problem with no response from the owner.
I assume the tenants occupy the property on which the trees were situated, and you attempted to contact the landlord through them. That may work as testimony, but it does not work to give notice to the property owner of the damage caused to your property by his negligence.
Attorneys usually offer a free or low cost consultation to discuss a case such as yours and to make a recommendation as to how to proceed. Try that first, and see what happens. Maybe the lawyer will offer to write a letter to the property owner suggesting he contact you to resolve the matter to avoid being sued. Such "lawyer letters" usually do the trick.
If the property owner has liability insurance, the insurance company will probably resolve the matted quickly and without much fuss.
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