Someone intentionally caused me to hit them, need advice!

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Latest post Sat, Apr 23 2016 10:30 PM by ElmoTheDestoyer. 8 replies.
  • Wed, Apr 20 2016 11:46 PM

    Someone intentionally caused me to hit them, need advice!

    Hi everyone,

    I have ended up in a bit of a situation and I'm not sure what to do really.. It's a little complicated but I'll try to explain as clearly as possible, sorry if I get a little long winded, I'll try to keep it as short as possible. :) ... This accident occurred in Washington, so obviously those are the laws that would apply.

    I was driving down the road, a woman pulled out in front of me from a side street, cutting me off. As a result of her cutting me off, I was in close proximity to her (sort of unavoidable when someone pulls out in front of you) ... Of course I slowed so I didn't hit her, once I reduced my speed to avoid the collision, I immediately reacted by "flipping her off" (she immediately looked in her rearview after pulling out in front of me) ... Her reaction to this, was to slam on her brakes, causing a collision. This whole series of events was around 3-5 seconds long, so this was not one of those situations where I was intentionally tailgating her for any length of time/distance.

    She was cited for "Failure to yield", and I of course got the obligatory "following too close". I intend to hire an attorney and fight the ticket, arguing I was close because she pulled out in front of me. Hopefully it will be reduced to a non-moving violation or something.

    Currently due to that ticket, her insurance company is holding me 100% at fault. I only have liability so my insurance won't pay to fix my car either.

    After the "following too close" ticket is dealt with, I want to try to get, at least some of my damages recovered from the woman who intentionally caused the accident.

    I realize most of the time, a rear end collision is a crap situation and everyone knows it (hence the reason she thought she could get away with it)... However I have evidence that she intentionally caused this to happen.

    First, her own statement to the police was that "she noticed me tailgating her, flipper her off", "a moment later" she noticed she was going 5mph over the speedlimit, then "a moment later she applied her brakes"... The cop didn't believe her side of the story, which is the reason he tried to emphasize that the moment before she hit her brakes that she knew I was there.

    Second, the damage on her car is 7-8inches lower than the damage on my car, showing she slammed on her brakes (after admitting knowing I was there), causing the back of her car to raise way up in the air. I have an accident reconstructionist firm (expert witness) willing to write a statement to that effect, including that there is no other explanation for the height difference in the damage.

    Last "arguement" is that she did get the ticket for "failure to yield right of way"... So I was not the only "law breaker" in the situation.

    I believe I have a case to get her/her insurance to pay at least some of the damages on my car (I'd personally say her intentionally causing it trumps me being too close to her, especially if I get that ticket dropped)... From what I understand about Washington being a "pure comparative fault" state, if she has partial liability I believe I should be award damages equal to the percentage of liability...?

    However I'm not sure how to proceed. Her insurance won't pay, they blame me 100% (of course), so I would have to sue.

    The damages add up to $3700 or so, plus I'll need a rental car for the time its in the shop... I'd guess maybe $4700 or so total, maybe a bit less, not sure exactly. Because of the dollar amount, it seems to be an issue for small claims.

    In small claims I think I could pretty easily make a case for at least 50% of the damages, however I'm worried about what her insurance is going to do to counter this? In Washington attorneys are not allowed in small claims court, I heard that it might be possible for the insurance company to move it out of small claims into normal court.

    Is this possible in WA? Seems to sort of screw me because I can't really represent myself in "normal" court. Or how would this be handled? Doesn't seem fair that they can just move it from small claims to normal court. :/

    I'm disabled and on a fixed income, so I'm not sure hiring an attorney to fight this in "normal" court is feasible, and if I could afford it, I have no idea how much this could cost in legal fees. If I could do it for $1000-1500 it might be worth it, but if it would get much more expensive I might lose it all in legal expenses. Seems like it would be a quick legal case, I'd imagine all of 10 minutes in small claims, but I have no idea how much "bigger" real court can get.

    One last thought I had, not sure if it's worth even talking about, but I thought maybe I could sue her in small claims for aggrevated assault/battery (since I can hopefully prove via proponderance of evidence) that she intentionally assaulted me resulting in property damage. My thoughts are that this takes it out of being a simple accident liability case, in which her insurance might be able to defend her and put it in normal court, and keeps it a civil case about an assault case in which the car was the weapon?

    Seems logical to me, but I'm probably closer to a Vulcan than an attorney. :)

    What would you do in my situation?

    Whew, that was a lot to get out... Anyway, if any of you have any advice that might help I would be deeply grateful.

    Thanks,
    --ElmoTheDestroyer

     

  • Thu, Apr 21 2016 8:18 AM In reply to

    Re: Someone intentionally caused me to hit them, need advice!

    Here's a link to RCW (Revised Code of Washington) 12.40.027.  If you sue in small-claims court for an amount equal to or less than the small-claims limit, the other side can't get the case moved to another court.  Of course you need to sue in the correct county, which would normally be the county where the defendant resides.

    ElmoTheDestoyer:
    I thought maybe I could sue her in small claims for aggrevated assault/battery

    No, you can't sue in civil court to try to prove someone committed crimes.  The prosecutor is the only one who can bring criminal charges against people.

     

     

  • Thu, Apr 21 2016 8:39 AM In reply to

    Re: Someone intentionally caused me to hit them, need advice!

    And actually it looks like you can sue in the county where the accident happened, if I'm understanding RCW 3.66.040 correctly.  Maybe that's also where the defendant lives, but if not, I think you can choose between the two counties.

  • Thu, Apr 21 2016 8:57 AM In reply to

    Re: Someone intentionally caused me to hit them, need advice...

    Thanks Karen!  That link may have saved me (certainly removed a lot of stress for the moment! :) ) ....

    On a side note, the defendant lives in the same county as me (about 4 blocks from me in-fact), so shouldn't need to worry about any complications related to sueing in the wrong county, apprecaite the thought though! 

    Have a great day!!

     

  • Thu, Apr 21 2016 9:21 AM In reply to

    Re: Someone intentionally caused me to hit them, need advice!

    ElmoTheDestoyer:
    I believe I have a case to get her/her insurance to pay at least some of the damages on my car (I'd personally say her intentionally causing it trumps me being too close to her

    Maybe. Maybe not.

    The WA Court of Appeals explains:

    "The rule in Washington is that "where the driver of a vehicle is following another vehicle, the primary duty of avoiding a collision rests upon the following driver and in the absence of an emergency or unusual conditions, the following driver is negligent if he runs into the car ahead." The prima facie showing of negligence may be overcome by evidence of an emergency or unusual condition, such as when the preceding vehicle stops suddenly or without warning "at a place where a sudden stop is not to be anticipated. But even in such situations, the following driver is not necessarily excused from liability:

    [T]he jury must answer whether the following driver was traveling closer to the preceding vehicle or at a greater speed than reasonable care required under the circumstances. It is for the jury to decide whether the circumstances were such that a sudden stop or decrease of speed was to be anticipated. While the following driver has the primary duty of avoiding an accident, he is not guilty of negligence as a matter of law simply because he collides with a vehicle in front of him.

    The degree to which the following driver is required to anticipate the likelihood of sudden stops by the preceding car necessarily depends on the specific factual circumstances. Consequently, except in rare cases, questions about the existence of an emergency or unanticipated condition or whether the following driver was traveling too close under the conditions are for the trier offact."

    http://www.courts.wa.gov/opinions/pdf/684264.pdf

    You are free to sue her for your damages and try to convince a court that the collision with her car was unavoidable due to her sudden stop regardless of how far behind her you were.

    Frankly, though, I don't think much of your chances. What I take away from your story is that she cut you off, you avoided hitting her, you were angry, you flipped her off, you crowded her a bit, she brake-checked you and you hit her because you were too close.

    Of course, what I think is irrelevant, it's what the judge (or jury) will think based on what you and she tell the court.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, Apr 21 2016 11:01 AM In reply to

    Re: Someone intentionally caused me to hit them, need advice!

    ElmoTheDestoyer:
    I have an accident reconstructionist firm (expert witness) willing to write a statement to that effect, including that there is no other explanation for the height difference in the damage.

    Don't expect any such statement to be admissible into evidence, but the notion that a car tilts forward when brakes are applied hard is not really one that requires expert testimony.

     

    ElmoTheDestoyer:
    Last "arguement" is that she did get the ticket for "failure to yield right of way"... So I was not the only "law breaker" in the situation.

    You seem to be basing all of this on the assumption that you will defeat your ticket (as well as the assumption that the other driver won't defeat hers), which obviously might not happen.  If it doesn't, then you'll have to deal with your own conviction.

     

    ElmoTheDestoyer:
    From what I understand about Washington being a "pure comparative fault" state, if she has partial liability I believe I should be award damages equal to the percentage of liability...?

    Correct, but it also means you'll be liable for a percentage of the damage to her car.

     

    ElmoTheDestoyer:
    However I'm not sure how to proceed. Her insurance won't pay, they blame me 100% (of course), so I would have to sue.

    Then how could you be unsure how to proceed?

     

    ElmoTheDestoyer:

    I heard that it might be possible for the insurance company to move it out of small claims into normal court.

    Is this possible in WA?

    Read RCW 12.40.027.

     

    ElmoTheDestoyer:
    One last thought I had, not sure if it's worth even talking about, but I thought maybe I could sue her in small claims for aggrevated assault/battery (since I can hopefully prove via proponderance of evidence) that she intentionally assaulted me resulting in property damage.

    There's no way you're going to convince a small claims judge that this was a case of aggravated assault/battery.

     

    ElmoTheDestoyer:
    What would you do in my situation?

    Since I carry collision coverage, this is a moot question.  However, were I you, I would carefully compare the estimated damage to the other driver's car and give serious thought to the likelihood of a ruling that each of you was roughly 50% at fault.  While your story sounds great when you're the only one talking, things may seem very different when the other party is there to rebut what you say and tell her own story.  In any event, small claims court is certainly the most appropriate venue.

  • Thu, Apr 21 2016 11:02 AM In reply to

    Disagree [)*(] Re: Someone intentionally caused me to hit them, need advice!

    karen2222:

    ElmoTheDestoyer:
    I thought maybe I could sue her in small claims for aggrevated assault/battery

    No, you can't sue in civil court to try to prove someone committed crimes.  The prosecutor is the only one who can bring criminal charges against people.

    This is incorrect.  Assault and battery are torts -- for which one most definitely can sue -- in addition to being crimes.

  • Thu, Apr 21 2016 12:11 PM In reply to

    Re: Someone intentionally caused me to hit them, need advice!

    ca19lawyer2:
    This is incorrect.  Assault and battery are torts -- for which one most definitely can sue -- in addition to being crimes.

    Oops, my bad.  Should have checked before I wrote that!

    OP shouldn't get too fancy and throw these terms around in small claims court, though.  Just say what happened and let the judge figure it out.

  • Sat, Apr 23 2016 10:30 PM In reply to

    Re: Someone intentionally caused me to hit them, need advice...

    Right on... Thanks for the info everyone!!

    Really appreciate the advice/thoughts...  Going to court should be..  Interesting. ;)

     

    Have a great weekend!

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