by TMR123 » Mon Sep 27, 2010 08:41 pm
Hi everyone. The problem is that about couple of months ago I was passing through intersection on Yellow light. The other driver made a left turn on Yellow light at the same time, which caused a car accident between us. When a police officer arrived he questioned both of us and after that gave ticket to the other driver for failing to yield right of way( that's what police report sated later when i received it). He was insured by State Farm at the time of the accident. I filed a claim but he's insurance company State Farm denied it, stating that they disputed the lights in the accident. Basically saying that i wasn't sure what was the light during the accident. Me and my friend called them later to ask if they are going to pay for the damages(the estimate i did at the shop $4725.55). The agent told me the same and that the only way is to sue them. What I've learned later that a can't sue them and that i should sue the driver. So I filed a lawsuit against the other driver in small claims court for $3500 because the cap is $3500 at small claims in Omaha, NE. Wanted to get at least that much. On the court day at the court house the administrator told me that he's lawyer transferred the case to the civil court and also demanded Jury. The legal adviser at the courthouse told me that all the lawyers who defended him on the list she saw are State Farm's lawyers and that I don't have any chances. I don't know what to do now. I go to college and work full time. My car is not drivable. I had only liability coverage with Geico at the time of the accident. Please help!!! Thanks a lot for your time and sorry for such a huge post...
Posted: Mon Sep 27, 2010 09:41 pm Post Subject:
Attorneys will try to move the claim out of Small Claims court as all of the higher courts _greatly_ favor attorneys. In those upper courts motions, discovery, etc are all requirements, unlike in small claims court.
I'm not an attorney so I don't know if you can but you could try submitting a motion to the current judge to see if you can have the case moved back down to small claims court. You should be able to find other motions for your area online and copy those. Contact the court and find out how to file this (I'm pretty sure you just need to send it to the judge and a copy to the other person's attorney. You want to read the other attorneys motion on having the case moved from small claims. I'm betting that they probably have every right to move the case.
Other then that, you could proceed with your case in civil court. Again, these courts don't favor non-attorneys as you need to know all the rules and regulations of court. But you could keep it simple and role the dice. I don't see that you have much to loose. The judge will probably give you some latitude as you are not an attorney. But also know that the defense counsel will probably object to just about everything.
You can also submit motions for depos and the like. A formal depo would probably cost you more then you'd want to spend but you should be able to have their driver write written responses to question. This does not cost anything as there is no need to pay a reporter to take notes.
If you wanted to pursue this... I'd recommend that you research it a little and try to file a lot of motions. This is going to cost SF a bundle of money in attorneys fees. Trust me... this is going to cost them much more to defend then if they would have paid if they just paid their claim. But they are doing the right thing if they really think you don't have a case.
What I would _highly_ recommend is that you contact the other person's attorney and see if they might be willing to negotiate a settlement. Feel free to point out that their duty to defend is greater then to pay claims they don't feel they owe but also point out that you intend to proceed with the case, file several motions, and that this is going to end up costing SF a lot more then a few thousand dollars. If you want, let then know you might be willing to settle for less then your initial demand. Also let them know if you proceed you intend in asking for the full amount owed, plus all expenses.
One thing I'd recommend is that you try to remain calm and not get personally involved. I know you feel you are being treated unfairly but keep in mind that this is just work for the other attorneys. They don't care who is right or wrong... they get paid to defend the other person.
In the end, walking into court blindly is not going to cost you anything more then a few hours. So it might be best to roll the dice and move forward with the case. You may also find that the other attorneys are hoping that you don't show up. Once they see that you are there, they may be willing to negotiate. Keep in mind that your first court date may be postponed (this happens often). You could then discuss settlement with the other attorneys as they now know you are planning on seeing this through. But I'd also call them before the 1st court date to see if they might want to settle.
What you also need to consider is that the SF insured needs to show up in court as well. That can be a _real_ pain for them. Especially if another court date is made. If the SF insured does not show up, they will probably lose. I mention this as everyone who deals with courts knows... going to court is _always_ a roll of the dice. Their case is weak as their driver was issued a citation. I also don't know why they asked for a jury... this is in your favor. A judge is not going to allow his/her emotions to be involved... a jury might. I think they choose a jury as they only need one out of five/seven to see it their way and then it's at least a hung jury.
One last thing... they should not file any type of counter claim against you as both insurance companies are members of inter-company arbitration. If they do, notify GEICO and let them know about this.
Posted: Tue Sep 28, 2010 02:12 am Post Subject:
One advantage you have with the case removed to Civil Court from Small Claims is the ability to AMEND your complaint for the full amount of your loss, plus fees and court costs.
And you just go to court and tell your story. With the assistance of witnesses and the police officer who wrote the report and citation. You should be able to go to the Traffic Court Clerk and find out what the outcome of his citation was -- paid a fine, had a trial and was found guilty or not. It's a public record. The report should give a citation # that you can research.
If he paid a fine or pled guilty, or was found guilty, there is no defense in Civil Court. Only testimony about the damages, how the cost to repair them was arrived at, and whether the damage has ever been repaired. If he pleaded NOLO CONTENDERE, then you have to "prove" his responsibility for your damages. You can bring up the citation, but you cannot use it as a free pass. It's just part of the evidence, and you use testimony to introduce it.
You subpoena witnesses and the police officer that wrote the report and issued the citation and when you put him on the witness stand, you hand him a copy of his report, and ask him a few questions. Opening statement, "I'd like to introduce Plaintiff's Exhibit B" (Exhibit A is your repair bill, already introduced as evidence in your opening statement of your claim or in your Amended Complaint, and Exhibit B should also be attached to the complaint) (1) "Do you recognize this?" YES. (2) "Can you tell the court what this is?" IT'S A TRAFFIC COLLISION REPORT. (3) "And who wrote this report, Officer Jones" I DID. (4) "And this report was made on the basis of a traffic accident investigation you conducted?" YES (5) Does your report document or describe any damage to the vehicles involved?" YES (6) "During your investigation, did you interview the drivers (and witnesses) involved in the collision?" I DID. (7) "And are both drivers present in the court today?" YES. (8 ) "Can you identify them for the court?" YES, YOU AND THE OTHER GUY OVER THERE, THE DEFENDANT. (9) "And as the result of your investigation, Officer Jones, did you come to any conclusions. YES. (10) "Did you include your conclusions in your report? YES (11) "And what conclusions did you make, Officer? THAT THE DEFENDANT FAILED TO YIELD THE RIGHT OF WAY. (12) "Please explain for the court how you arrived at that decision." ON THE BASIS OF MY EXPERIENCE . . . . (13) "And did you take any additional action?" YES. (14) "What other action did you take?" I WROTE THE DEFENDANT A CITATION FOR FAILURE TO YIELD. (15) "Do you know what the outcome of that citation was?" YES (or NO) If yes, (15) "Please tell the court what the outcome was." HE WAS FOUND GUILTY (or not -- best if he was). (16) "I'd like to introduce Plaintiff's Exhibits C-D-E-F . . . (all of your photographs, need to provide copies to the defense in advance of the trial) (17) "Please take a look at these photos, Officer Jones. Do you recognize the location?" YES. (18 ) "Can you please tell the court the location and direction shown in the photos?" YES (and he probably will). (19) "How is the intersection controlled?" BY A FOUR-WAY TRICOLOR SIGNAL. (20) At the time of your investigation of the collision, were the signals operating normally?" YES. (21) "Based on your experience, is it likely that the signals were not operating correctly one minute and operating correctly 10 or 20 minutes later?" ("Objection! Calls for speculation.") ("Overruled.") NO. (22) "Thank you Officer Jones, no further questions at this time."
What are they going to do? They'll ask the officer some questions trying to trip him up, or they won't ask many questions at all.
Then what? You rest your case. Unless you have some witnesses listed in the report. If there are, you'll need to subpoena them and you'll need to question the officer about any witnesses he included in his report (after Q6), and whether he had any reason to disbelieve their statements. And you'll call each of the witnesses to the stand to testify to the events after the officer is done.
(You'll have to give your list of witnesses to the Defense, and they have to give you theirs. Don't be surprised if there is a "mystery" witness who didn't stay to give a statement to the police or identify himself to you at the time of the accident. And don't be surprised if he just happens to be a friend of the Defendant who just happened to be driving by at the moment and saw everything. You just have to get him to admit that he's a friend of the defendant and that he failed to perform his duty under the Vehicle Code to identify himself as a witness.)
Then what happens? They put their insured on the witness stand and he'll lie and say the his light was green and yours was red.
Ideally, your video or photographs of the intersection from your point of view when you were driving, and from his point of view will provide the necessary information about that. If there are no signals that control the left turn pocket, how can he win?
Well, despite the best evidence and testimony, juries sometimes get it wrong. But sticking up for yourself in court, with confidence, even though you'll be nervous, should look good to the jury.
Posted: Tue Sep 28, 2010 02:45 am Post Subject:
The _huge_ problem with this higher court is that the defense attorneys are going to make motions and are going to do everything in their power to excluded anything the OP tries to do. If the OP does not know the rules and laws involved (2-4 years of legal training and several more years of trial experience) then those attorneys are probably going to walk all over him. They also have the money to set up their case. If the OP does not do everything just right, he's going to have a very difficult time.
But I still say, proceed... if you lose you are no worse then you are now. If you plan on moving forward, use this as leverage in settling before you go to court.
Posted: Tue Sep 28, 2010 02:53 am Post Subject:
It's a concern. But it should not dissuade the OP from giving it their best shot. It's more complex than I've alluded to, but not insurmountable. And if the OP hires an attorney, there's a good chance, since it was the defense that brought the case to the higher court, that if the OP wins, the court will award attorney's fees and court costsover an above the damage award.
It's the right thing for the judge to do. But the attorney has to ask for it in the amended complaint, or it won't happen. Can't get what you don't ask for in writing.
try to file a lot of motions
Not a bad suggestion, but each motion costs a filing fee, too.
Posted: Tue Sep 28, 2010 11:55 pm Post Subject:
Thank you very much tcope and MaxHerr for the helpful info on that matter. Unfortunately the only witness was my father who was with me in the car and his is not qualified as witness. I'm planning on proceeding with the court and see what happens. I'm also writing a complaint to BBB and Attorney General. My friend also told to find a lawyer who would take a percentage of the claim if he/she wins the case, but i doubt that. Well my court is in December, we'll see what happens and ill definatly keep you guys posted. Thanks Again
Posted: Wed Sep 29, 2010 12:08 am Post Subject:
Unfortunately the only witness was my father who was with me in the car and his is not qualified as witness
Don't know about that. Worse case the defense will object. But I really think he's allowed to be a witness. Think about this... you testify and the other person testifies. No reason your father cannot as well. All are sworn to tell the truth. Of course defense counsel will try to make him look partial.Posted: Wed Sep 29, 2010 12:17 am Post Subject:
Unfortunately the only witness was my father who was with me in the car and his is not qualified as witness.
Wherever did you get that idea? A witness is a witness. It's up to the judge or jury to determine their credibility. No witness is "disqualified". They might appear to be biased and their testimony not given much credence, but they are allowed to speak and be heard. And, again, if you're in front of a jury, the bell cannot be unrung -- only ignored.
Don't waste your time on the BBB -- they are absolutely worthless in a case like this. Insurance companies don't care about the BBB, they answer to state and federal regulators. And before you head for the Attorney General's office, head to the Insurance Commissioner's instead. More juice there.
Before you sign on with an attorney, see if you can get an agreement to argue for separate attorney's fees in your complaint. That way the award won't be diminished by 30% to 40%. If, by some chance, you lose, you'll owe him anyway. Find out if the attorney has actually argued a case at trial to a verdict. So many lawyers have never faced a jury that it's not even funny. You'll really need a bulldog here who's not going to be sacred off by the $1000 suits that wander into court.
And make sure you file an amended complaint for the full damages and any pain and suffering or medical bills you or father incurred. Get it all on paper before you go to trial, or you will forever give it up.
And, in most states, long before the trial (your court date is a preliminary hearing on the merits of the case -- if there are no grounds to proceed to trial the judge has to dismiss, but that's not going to happen in your case), you and the defendant will most likely be ordered to a "mandatory settlement conference" -- most courts have adopted this as a way to relieve the burden on, and backlog in, the system for matters that should have been resolved without attorneys in the first place.
At the settlement conference, you want to make sure your attorney presses his claim for separate attorney's fees since this never should have been removed from Small Claims in the first place. If he/they won't do that, you'll have to get at least $5000 to make up for the fees and what you would have gotten as the maximum in Small Claims ($3500).
A judge would most likely award separate attorney's fees due to the low value of the claim and the inconvenience to the court for hearing such a petty case (petty in the larger sense of what the court really exists to do).
Please come back and let us know how things work out.
Posted: Wed Sep 29, 2010 03:07 am Post Subject:
Quote:
Unfortunately the only witness was my father who was with me in the car and his is not qualified as witness.
State Farm Claims Agent told me that they disputed the lights because there were no witnesses and my father is not qualified as a witness.
Posted: Wed Sep 29, 2010 03:10 am Post Subject:
How can I raise my claim in that case. Court clerk told me that i might have to have another court for it, to just raise my claim... or I can raise it during the court? Thanks
Posted: Wed Sep 29, 2010 03:24 am Post Subject:
State Farm Claims Agent told me that they disputed the lights because there were no witnesses and my father is not qualified as a witness.
Correct... for them they don't use a relative or another person in the vehicle as that person is simply going to back up that driver. It then turns into a case of who has the most people in the vehicle. But a jury trial is different. The jury can consider and and all info on the case. It's then the defenses job to discredit the witness or point out that he's bias.Add your comment