by Guest » Fri Jun 17, 2011 06:20 am
I was in a car accident and our car insurance companies went to inter-company arbitration and decided it was 50/50 on the liability. I contacted the other party’s insurance regarding the injuries my daughter sustained and was told that they only agreed to 50/50 on property damage and will not pay anything on personal injury. How is that possible and is it even legal in California. If they agreed that their insured is responsible for 50% of the damages doesn’t that include all damages?
Posted: Fri Jun 17, 2011 12:59 pm Post Subject:
Max would know better but as I see it, CA is pure contributory. This means that a person's right to collect is reduced by the amount that they are responsible for their own loss. So if the carrier feels that you contributed 50% to your loss and their insured contributed 50%, then you are entitled to be paid for 50% of your loss. However, an injury claim and property damage claim are two different things. They are bound by arbitration for the property damage but it does not apply to your injury claim. Some carriers would accept the arbitration decision as writing on the wall and apply it to the injury claim but they are not required to do this. Arbitration is _much_ different then our legal system. So they can very well pay the required 50% in property damage but still say that they are 0% liable for the accident and therefore not pay your injury claim. I think this is what is happening here. You should ask if this is the case.
If they deny your injury claim you may want to speak to an attorney. If you had a good case in inter-company arbitration then you probably have a good case for an attorney on your injury claim.
Posted: Fri Jun 17, 2011 04:21 pm Post Subject:
tcope has accurately described the situation.
Interompany arbitration only has to do with SUBROGATION amounts. When the two companies cannot agree on liability, it goes before the arbitrator (sometimes only "electronically" these days) who makes a binding decision.
In this instance, the arbitration was almost certainly over physical damage to vehicles only, with the insurance companies pointing their fingers at each other as to who has greater liability.
On the personal injury side, as tcope has said, the writing is on the wall, and the other party's insurance company is probably going way out on a limb to deny the injury claim if an arbitrator has viewed liability as 50-50. But it is a separate matter, and in court it could go in an entirely different direction.
Which means it could also be very adverse to the insurance company for denying the claim and forcing a person into litigation or arbitration.
Unfortunately, when dealing with another person's insurance company, they cannot be forced to arbitrate a 3rd party claim by anyone other than a court. They should voluntarily agree to arbitrate such a claim, but they have no contractual obligation to do so.
Worse yet, is that when an attorney gets involved, even in arbitration, they are going to stick their thumb into the pie and pull out that plum worth 30%-40% of the settlement, which is a high price to pay when an insurance company acts as it has in this instance.
Insurance companies don't like to go to court, especially here in California, over claims denials, because a jury could nail them with "punitive" damages for their bad faith action. It takes a fairly skillful attorney to get that kind of award, but it happens.
Also, if any of the actual medical expenses have been paid by separate medical insurance, that insurance company is entitled to recover up to 100% of its expenses from any award to the OP or her daughter. The attorney still gets his portion of that amount, which can leave a plaintiff with no money in their own pocket after all is said and done.
That's the reason we need genuine TORT REFORM in all states.
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