by aleori1186 » Wed Aug 25, 2010 04:52 pm
I was already in the middle of the intersection when the other car failed to stop at the stop sign and smashed into the passenger side of my truck. I drove the car forward 1)because I had a passenger, my husband, and wanted to make sure he was ok and unhurt and 2) to get out of the way since we're in the middle of the intersection. Allstate, the other driver's insurance company is alleging that was negligence on my part and although the other driver was at fault they can only pay me for 80% of total damages. Can they do that? The total amount they were willng to pay at 100% was already low enough, and I don't think it's right that we only get 80% when I didn't cause the accident.
Posted: Wed Aug 25, 2010 05:00 pm Post Subject:
In what state did the accident occur? If it is not one of the few "contributory negligence" states, it is entirely unlawful to do that. On the other hand, if you were lawfully in the intersection and had the right of way, I doubt that many of us here would believe that the other driver's act is anything less than 100% negligent.
Was the other driver cited for failure to stop? That would be a nail in the coffin when it comes to negligence.
Posted: Wed Aug 25, 2010 05:22 pm Post Subject:
It happened in Illinois and yes, the driver was issued a ticket for failing to stop at the stop sign. The policeman also wrote that into the police report but Allstate still says I was negligent. The other driver has court on Friday, the policeman will be there and he advised to go as well. We are going but Allstate said that whatever is decided there has no bearing on their offer. Is that true?
Posted: Wed Aug 25, 2010 06:31 pm Post Subject:
I'm guessing Allstate also told you _why_ they were assigning 20% negligence to you? Please share this info so we don't need to guess at it.
Well, what the heck.... I'm guessing it was a 4 way stop and the other party is stating that you did not stop?
Where on the passenger side of your vehicle were you struck? I'm guessing the front fender/bumper area?
Posted: Wed Aug 25, 2010 06:43 pm Post Subject:
sorry, yes, it was a four way stop and allstate says that it's negligence because i didn't stop in the middle of the intersection to make sure that the other vehicle stopped and also because i should not have driven the car forward to get out of the way. no, i was hit right on the passenger door, and really bad, not just a little dent. i wasn't exaggerating when i said the other driver smashed into my truck.
Posted: Wed Aug 25, 2010 11:32 pm Post Subject:
Max...likely pure comparative state..
Sure they can assess 20% negligence to you...do you have to agree with that? NO you don't..I assume you have collision coverage on your vehicle right? If you can't get allstate (who in my part of the world ALWAYS attempts to apply 'some' comparative on EVERY claim), to accept 100% go to your carrier have them repair your vehicle then they will subrogate allstate, if they won't agree, assuming your carrier sees it your way, they will then arbitrate it.
Remember if you accept this 80% if your state is pure comparative (and I think it is), that means your policy pays 20% of the other guys damage(s)..
Posted: Thu Aug 26, 2010 01:33 am Post Subject:
I see little reason for the 20%. The point of impact to the two vehicles indicate that you were in control of the intersection, you had not chance to avoid the impact, the other person did have a chance to avoid and the police officer indicates that one the other person failed to stop.
Also, the ticket _is_ part of liability. Allstate is correct in that they can ignore this if they want... but it's admissible and considered in court.
If you went to court do I think you'd win? I think it's almost a slam dunk. Allstate just needs to pay the claim and move into the next one. :roll:
Posted: Thu Aug 26, 2010 06:31 am Post Subject:
If you are not satisfied with Allstate's offer which is based on less than 100% negligence on the part of their insured, as others have written in response to your post, you don't have to accept the offer. If you don't already have one, demand a written explanation of their reasoning that you are 20% negligent.
I would go to court to see how the other driver pleads. If he pleads guilty or is found guilty by the judge or a jury, then you have all you need to proceed to civil court and obtain a judgment based on 100% negligence. I cannot see how Allstate could possibly argue that the accident is even 1% your fault if he is convicted of failure to stop. If he had stopped, the accident would not have happened. If the driver pleads "nolo contendere", then you still have a case, but you'd have to present all of the evidence to prove that he ran the stop sign, such as calling the police officer as a witness -- you cannot use his "nolo" plea as proof of anything.
I would advise you at this point to file a complaint with the Illinois Dept of Insurance on the basis of "Unfair Claims Practices". I would wait just long enough to get Allstate's written explanation of their 80% determination, because you would want to include a copy of that with your complaint.
Your other option, as others have also stated, is to file the claim with your own insurance company, if you have collision coverage, allowing them to pay for 100% of your damages (less your deductible), and sue the other driver for your deductible in small claims court. With his guilty plea or verdict on the failure to stop citation, you should have a guaranteed win, and he could not be represented by an attorney who could argue otherwise on his behalf. A judge would have to be nearly brain-dead to make any other decision.
But I would try the DOI complaint route first. Allstate's attitude, in my opinion, is not one of good faith, and the DOI can help them "see the light". They can also fine them for unfair claims practices.
Posted: Thu Aug 26, 2010 07:46 am Post Subject:
I would advise you at this point to file a complaint with the Illinois Dept of Insurance on the basis of "Unfair Claims Practices
Does not address liability to a 3rd party. a DOI complaint is going to do next to nothing as they don't get involved in liability disputes.Posted: Thu Aug 26, 2010 05:28 pm Post Subject:
I thought it was very obvious that the other driver was at fault too and the policeman thought so too. When the other driver denied it was his fault the policeman took us over to the accident site and said that based on where I was hit and the debris on the ground he could tell that the other driver was at fault. He issued him a ticket for failing to avoid an accident so if we had to go to court I think we could win. Thanks for all of your help, I was so worried about what Allstate told me but I feel more confident now that I can fight them and get fairly reimbursed.
Posted: Thu Aug 26, 2010 06:15 pm Post Subject:
they [DOI] don't get involved in liability disputes
While that's true, they do get involved in UNFAIR CLAIMS PRACTICES, regardless of the situation.
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