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At fault insurance offers 50/50 liability split

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Latest post Mon, Jun 19 2017 9:56 AM by adjuster jack. 4 replies.
  • Fri, Jun 16 2017 9:26 AM

    • bspaggs
      Consumer
    • Not Ranked
    • Joined on Fri, Jun 16 2017
    • OH
    • Posts 2

    At fault insurance offers 50/50 liability split

    Looking for advice on dealing with a third party claim. Six weeks ago I was turning left into my driveway on a 25 mph residentail street, when a driver behind me tried to pass me on the left. My left bumper struck the side of his car, and scraped along the side until he finally came to a stop several seconds after I stopped. Police were called, officer clearly stated that the overtaking driver was at fault and issued him a citation. Other driver claimed that my blinker was not on (it was) and that I stopped in the middle of the street for several moments (I didn't). Officer explained that the law doesn't take that into account and he is still at fault. Insurance info exchanged. Driver insisted he would fight in court but ultimately he just paid the ticket.

    I file a claim with his insurance. Later I find out that he is not the owner of the car, and thus there are two claims open on the case between the owner's and driver's insurance. The owner's insurance finds the other driver 100% at fault and pays out the claim for the damage to her car. However, they deny paying for liability damages as there is some dispute as to whether he had permission from the owner to drive the car. Hence I am stuck with his insurance.

    After not answering or returning my phone calls for six weeks, I finally get a call from the insurance adjuster two days ago. She takes my statement and says that they will only accept 50% liability for the accident. I argue that he was issued a citation, which he paid. Paying the fine, she says, is not an admission of guilt (this is wrong as the city website clearly states that it is). Also, because the damage to his car is "towards" the rear, obviously I was not paying attention and failed in looking out when I was turning. She admits that "common sense" should have told him not to pass me (I had to remind her, over and over again, that actually it's the law and not just common sense that he violated), but I had "plenty of time" to stop my car. Which I didn't. 

    Here is my question: I could hand this over to my insurance company (I reported the accident the day it happened but did not file a claim with them), but does that mean I risk them ultimately deciding that for such a small sum (estimated damage $1000), it's not worth fighting over? I do not want to accept even 10% responsibilty for an accident caused by someone committing a moving violation, expecially when he was coming from behind me and I didn't see him - literally - until it was too late for me to avoid hitting him.

    The other option is small claims court. I am fairly certain I would win. Should I tell the adjustor if they do not take 100% liability I will take their client to court? I have the police report and officer statement. I also spoke with the adjustor for the owner's company that found him 100% at fault, and she said she would be happy to help me any way she can.

    Sorry this is so long. Any advice appreciated!

  • Fri, Jun 16 2017 10:40 AM In reply to

    Re: At fault insurance offers 50/50 liability split

    1 - Paying the fine is an admission of guilt for the traffic infraction but not an admission of liability for negligence. Only a civil court can rule on a person's negligence or comparative negligence.

    2 - The other driver's insurance company is not your insurance company and owes you nothing until a court of law says that the driver is negligent and how much.

    3 - The issue of permissive use is likely bogus. That the driver had access to the keys and the car can be construed as constructive permission. The claim should be covered by the owner's policy not the driver's policy. You might take another shot at the owner's adjuster and explain that and see what happens.

    4 - Yes, it's possible that your insurance company might decide not to subrogate or, if it does subrogate, accept the 50% and find you 50% at fault.

    Since your damage is small and your car can still be used, I would go the small claims route in a heartbeat.

    Try this before suing.

    Obtain an Ohio small claims complaint form from your local court or its website. Fill it out showing both the driver and the owner as Defendants. Allege negligence on the part of the driver and negligent entrustment on the part of the owner.

    Negligent entrustment in Ohio is addressed by 4511.203. You don't have to explain it or refer to the statute. A complaint form just gets the allegations on record.

    http://codes.ohio.gov/orc/4511.203

    Attach the completed (but not filed) complaint form (and your repair estimate) to a demand letter that you send to the driver, the owner, and both adjusters, demanding payment by (date) and that you will file suit if payment is not made by that date.

    Don't bluff. Be prepared to file suit against the driver and owner the day after the deadline.

    I make no guarantees. Just telling you what I would do. Feel free to come back to this thread with the results if you need further discussion.

    As for threatening an adjuster with litigation my response was always "Go for it." :-)

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Fri, Jun 16 2017 11:53 AM In reply to

    Re: At fault insurance offers 50/50 liability split

    It sounds like he was 100% at fault. Him being cited means he was at fault. I wouldnt pay anything out of pocket and let your insurance company settle it. Even if you sue in small claims who knows if you will ever see a dime of it.

     

  • Mon, Jun 19 2017 9:30 AM In reply to

    • bspaggs
      Consumer
    • Not Ranked
    • Joined on Fri, Jun 16 2017
    • OH
    • Posts 2

    Re: At fault insurance offers 50/50 liability split

    Thank you very much for your input. I've read through quite a bit on these forums and your advice is invaluable. I only have two more questions, if you have time for one more reply.

    1) I do think small claims is the way to go. But only if my case is rock solid. To me it feels cut and dry - but do judges follow the comparative negligence rule like insurance companies? Or is the person who broke the law normally found 100% responsible?

    2) Is it really necessary to name the owner in the dispute? 

    Thanks so much

  • Mon, Jun 19 2017 9:56 AM In reply to

    Re: At fault insurance offers 50/50 liability split

    bspaggs:
    But only if my case is rock solid. To me it feels cut and dry

    There is no such thing. So don't let that be the criteria on which you base your decision.

    bspaggs:
    but do judges follow the comparative negligence rule like insurance companies?

    It's the other way around. Insurance companies follow the rule because judges and juries follow it.

    http://codes.ohio.gov/orc/2315.33

    bspaggs:
    Or is the person who broke the law normally found 100% responsible?

    Sometimes, but not necessarily. A traffic violation does not automatically impute negligence on the part of a driver and there can be a finding of negligence on both drivers even though one did not get cited.

    bspaggs:
    2) Is it really necessary to name the owner in the dispute? 

    No, not "necessary" but highly recommended. You would be doing yourself a disservice by omitting the owner as this permission business raises the suspiction that there may have been negligent entrustment involved that the owner may be trying to cover up.

    When you raise the issue in your demand letter it might convince the owner's insurance to contribute some, if not all, of the difference. The insurance company will have to consider the cost of an attorney to represent the owner in court if it gets to court and that's often a factor on small claims.

    It's up to you to decide what you want to do.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
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