by jlaliberte » Fri Jun 22, 2012 09:33 pm
Just got off the phone with an American Family claims representative. I was involved in a fender bender in a parking lot at COSTCO. Both vehicles had initiated exiting their respective spots. As I started to exit a man in the lot yelled out to stop, I stopped. The driver of the other vehicle did not hear the man and proceeded to rear end my car. My insurance agent insists that because I had come to a complete stop (and have my wife and son as witnesses) that I cannot be at fault. Am Fam states it is equal fault and I should make my claim with my insurance company. Because she failed to stop she was further out of her spot than I, AMFAM therefore claims she had right of way because she initiated her exit first"
Posted: Sat Jun 23, 2012 11:19 am Post Subject:
My insurance agent insists that because I had come to a complete stop (and have my wife and son as witnesses) that I cannot be at fault.
The words of your agent are the problem. Your agent has no authority to make such a statement because he is not a claims representative of the insurance company.
Your wife and son are not considered "independent" witnesses and their testimony is essentially without value outside a courtroom. In the courtroom, it is only of limited value -- who wouldn't tell whatever story was convenient to make hubby's or daddy's case appear rock solid? Such testimony is easily impeached.
As I started to exit a man in the lot yelled out to stop, I stopped.
Did you happen to get this person's name, address, and telephone number? His testimony would make or break your claim.
If American Family disclaims responsibility for the loss, then you have no choice but to (a) use your own insurance to pay for the damage to your vehicle and sue the at-fault party for your collision deductible or (b) sue the at-fault party for the total damages. If you win the case, American Family will have to pay.
The fact is, when two vehicles are moving in reverse in a parking lot, it's pretty much a matter of "mutual combat". You don't see her, she doesn't see you, and a collision occurs. Each party assumes responsibility for their own failure. That's the typical outcome in small claims court.
Posted: Sat Jun 23, 2012 03:00 pm Post Subject: am fam auto claim
I appreciate your respnse and based on the stimated repair costs will make decision as to how to move forward.
With reect to your comment regarding my family as witness' I can only say the following;
I understand the skepticism that would be implied in a situation where a family members testimony is heard in a dispute. All that being said I hope that imy family and I are not the only people left on this planet who would not ".....tell whatever story was convenient to make hubby or daddys case look rock solid". I pride myself and take pride in my family for their strong moral and ethical character. I have never filed a fraudulent insurance claim and never would, we all pay for such theft. I hope you are wrong in your assumptions..... but suspect you are right. Thank you again for your response.
Posted: Sun Jun 24, 2012 03:28 am Post Subject:
I hope you are wrong in your assumptions
Please don't misunderstand my remarks. I did not assume that you, your wife, or your child were lying about the event as it occurred. Merely pointing out that independent, third parties are generally considered more reliable than family members for obvious reasons.
No doubt your family has/observes the highest moral values, but in a case of "he said - she said" that's not going to be part of the testimony. People (like judges and jurors and reporters) read body language along with the oral responses of witnesses. If, for example, you chose to call your child as a witness, and when asked each question, your child first looks to you or your wife for affirmation, it could be viewed as looking to you for the preferred answer. And that could cause his entire testimony to be stricken from the record.
Please, do what you need to do. I just don't want you to be disappointed if, even after your spouse's iron-clad, not one iota of falsity testimony, things don't go your way. I see this coming out as a "draw" in the absence of a truly unbiased and unrelated third-party eyewitness.
Posted: Sun Jun 24, 2012 03:59 pm Post Subject: AMFAM Auito Claim
Understood. I don' t believe the woman that hit me could testify as to whether I was stopped or moving. She said she was not aware that I was stopped, and assume she would have stopped herself if she had been looking in the mirror. She stated she did not see me.
All that being said I would hope that the testimony of the only identifiable witnesses would prevail over that of a driver who if being honest cannot say whether she saw me stop or not. In that instance I would hope that my case would prevail. I do not see how a stopped car in a parking lot can be found at fault, and I don't think my opinion is tainted simply because I was the driver who stopped.
Any person reading the body language of myself, son or wife and interpreting that as some form of coaching or affirmation would be falsely reading such body language.
Again, I suspect you are right. The only testimony substantiating my claim that I had stopped could very likely be stricken based on someones interpretation of body language or eye contact. I believe this could very likely happen..... and I also believe that this is the result of the prevalence of insurance fraud in this society, and lends to your original statement stating "who wouldn't tell whatever story.........". Your cynicism is reflected in your answers in spite of your correct perspective that it will likely be a draw. I do believe this is because the presumption of innocence is no longer true, and has been replace with the assumptions you espoused in your original reply.
I state that my family's ethic and integrity are what they are not to portray some type of moral / ethical superiority but to establish that this should be the norm, and once was. But you and I both know it is not. Thank you again for you perspective, and I understand I will likely lose............... :>D
Posted: Sun Jun 24, 2012 08:32 pm Post Subject:
and I understand I will likely lose
That's not a foregone conclusion. "Losing" would mean having to pay for the damages to the other vehicle, and i don't believe that is the likely outcome. As I said, the most likely outcome, in the absence of unrelated witness testimony, is 50-50 . .. you are responsible only for your own damages, she is responsible for hers. If you consider that as "losing" so be it.
Yes, there is plenty of insurance fraud (auto insurance fraud is the #1 form in CA), but it has nothing to do with your situation. There is nothing that prevents your wife or son from testifying, and unless they commit outright perjury, their testimony will be received into evidence. Whether a judge or jury believes what was said is up to them.
You can get a taste of what this is like by watching any of those wonderful TV courtroom shows: The People's Court, Judge Judy, etc. Watch how the judges handle similar situations. (And in the case of Judge Judy, men almost always lose.)
I wasn't trying to be cynical in the least. You have a legitimate gripe against the insurance company, and the only way to resolve it is to sue the at fault party in small claims court. Understand, however, that lawyers are not permitted in small claims court, and the woman is owed a defense from American Family. The only way for them to provide that is to remove the case to superior court or event to federal district court (as a "diversity" issue).
You will have a very difficult time representing yourself in a higher court setting than Small Claims. You will have an even harder time finding an attorney to take your case, because there is no money in it for them. (The best scenario is that the woman files a cross-complaint against you, in which case, your insurance company will provide you with a defense attorney who will also argue your case on your behalf.)
I state that my family's ethic and integrity are what they are
And I have no reason to disbelieve you. I'm just trying to play "devil's advocate" and not to disillusion you by saying, "Of course, you will win." No one here can make that call.
File your small claims case and see what happens. And let us know what the outcome was.
Posted: Mon Jun 25, 2012 03:01 am Post Subject:
In my experience, parking lot collisions are perhaps the most difficult location to sort out who is at fault. While the words of your adjuster might sound like common sense, you may nevertheless bear some legal responsibility. It’s not a question of guilt or innocence but rather a question concerning the degree of fault that each driver bears. Most states have a motor vehicle laws which impose liability for backing a vehicle unsafely or for moving a vehicle from a parked position before ensuring that it was safe do so. In other words, both drivers are generally responsible for maintaining a proper look out and not backing their car out of a parking spot unless the pathway is free from obstacles. It sounds as if the independent witness (i.e. the man yelling) will likely testify that he observed two vehicles backing out of their respective spots at the same time (which is why he yelled out). This testimony might be used to place some blame on both drivers since each one maintained a duty to not move their vehicle unless it is safe to do so. Note, however, some states do apply the “last clear chance” doctrine which would place greater fault on the driver who had the last opportunity to avoid the accident.
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