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 Posted: Wed Mar 05, 2008 10:44 pm Post subject: |
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It looks like you may be in the clear here, at least partially anyway.
I would take the time to look up the following case law:
| Quote: | An individual who brings a claim or lawsuit against another driver for injuries sustained in an automobile accident, also known as a "claimant" or "plaintiff", must prove that the other driver was negligent. Simply put, it must be proven that the other driver failed to use that degree of care in operating his or her vehicle which would be required of a reasonably prudent driver under similar circumstances. Whitford v Pacific Gas & Elec. Co., 289 P2d 278, 136 Cal.App.2d 697 (1955). Also, it must be proven that the other driver's negligence was the cause of the plaintiff's damages and injuries. Clarke v Hoek, 174 C.A.3d 208 (1985); Peter W. v San Francisco Unified School District, 60 C.A.3d 814 (1976).
The cause which must be proven, "proximate cause" or "legal cause", requires the claimant/plaintiff to demonstrate (1) the defendant's negligence contributed to the plaintiff's injury. Sagadin v Ripper, 175 C.A.3d 1141, 221 C.R. 675 (1985), Gordon v Havasu Palms, 93 C.A.4th 244, 112 C.R.2d 816 (2001); and (2) there is no foreseeable, independent intervening act causing the plaintiff's injury. Mitchell v Gonzales, 54 C.3d 1041, 1 C.R.2d 913, 819 P.2d 872 (Negligence must be substantial factor in causing injuries)
Comparative Negligence
Comparative negligence is negligence on the part of the plaintiff that contributes to his or her injury. California has adopted a "pure form" system of comparative negligence. Accordingly, if a plaintiff is even slightly at fault in creating the injury, damages will be reduced in proportion to his or her fault. Li v Yellow Cab Co., 13 C.3d 804, 119 C.R. 858, 532 P.2d 1226 (1975).
Common Actions Held To Be Negligent Under California Driving Law
Failure To Yield Right Of Way - (Veh.C. 21800, et seq.) Intersections (Veh.C. 21800(a)-(e), Saterlee v Orange Glenn School Dist. 29 C.2d 581, 177 P.2d 279 (1947); Left turns (Veh.C. 21801) Sesler v Ghumman, 219 C.A.3d 218, 268 C.R. 70 (1990); Yield Right Of Way Signs (Veh.C.21803); U-Turns (VehC. 22105) |
Good Luck!
Maze
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InsuranceMaze
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| Posted: Wed Mar 05, 2008 10:56 pm Post subject: |
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| Quote: | tcope-- you think the doctrine of last clear chance would apply here? Just curious, not saying you're wrong, but interested in your ideas.
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I did not mention the Last Clear Chance Doctrine as it would not apply in a comparative negligence state (comp neg states don't need the LCC doctrine as it's built into the definition of comp neg). But I did mention just last clear chance as it does apply (really just semantics).
Yes, I think LCC applies! It accounts for a good portion of liability in my opinion. If I understood the OPs description, her car was stopped in the isle way when the impact occurred. The other driver had the responsibility to make sure the area behind his/her car was clear and did not. So that driver _clearly_ had the opportunity to avoid the accident... simply don't back up into the OPs car! The OP can't get away from the person backing up as she cannot move sideways to avoid (POI to the OP's car was the side door).
| Quote: | | Seems to me that the "proximate cause of the collision" was the driver that turned into a one-way drive going the wrong way. |
Nope, as there is a broken chain of events. The break is the time frame between the two actions and that entering the wrong way really has little to do with the actual accident. Look at it this way... what would have been different of the OP's vehicle was facing the opposite direction? Again, I'm looking at the OP's statement: | Quote: | | I was stopped and a woman in one of the parking spots to my left, backed out, without even looking, right into my drivers side door. |
Granted, I don't know that the OP was really stopped nor how long the OP was stopped and this could make a difference. But this is why I thought the OP was also partially at fault in the accident.
If I was the other parties carrier, I would have inspected the damage to the OP's car to see if there was an indication that the OP was moving at the time (long scrape marks instead of a neat dent). Also, any scrape marks would indicate is the OP's direction at the time.
| Quote: | | I suppose the argument could be made that the backer only looked in the direction that traffic was ''supposed'' to be coming from... |
I agree with this and it's a good argument for the other driver to raise. But I'm also going by the POI to the OP's vehicle being the side door. This really indicates to me that the OP was directly behind the other driver when he/she backed up. Again, if the OP was actually moving at the time, it would change all of this.
| Quote: | | One would think, by the OP's comments, this accident was clearly in the parking lot. Which one would think should throw out any DOT rules & regulations. Making it an "Tort" action. Usually in tort "reasonable" is the key factor. |
The OP has the same tort action regardless. Where the accident happen would not matter (tort is a civil wrong, which is always going to be involved in an accident. What you're thinking of is that the drivers may not be cited as it's private property).
| Quote: | | FYI, I live in central California |
Comparative Negligence applies. Meaning, each drive can collect the percentage that the other party is at fault. If the OP contributed 25% to the accident, the OP can collect 75% of her loss from the other party. Given that this is Comp Neg, I don't see how the other carrier can deny 100% liability. That is just a bad call all around.
OP, it does not really matter that the lot was poorly designed. This just means you made an "honest" mistake by pulling in. It's still a mistake you are responsible for.
My suggestion is to make sure the other adjuster knows you were stopped at the time (is this correct?), that the other driver obviously should have seen you behind his/her car if they looked and that the other driver had a duty to make sure the area behind him/her was clear (that duty was breached). You can also point out that it does not matter which direction your car was facing as the accident would have happened either way (again, if you were _stopped_ behind the other vehicle at the time). If nothing else, if the other carrier won't accept any liability, they are probably making a bad call. |
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tcope
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| Posted: Thu Mar 06, 2008 11:04 am Post subject: |
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| Wow tscope you really know your stuff. I am impressed. |
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fireyone
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| Posted: Thu Mar 06, 2008 11:10 am Post subject: |
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you are absolutely correct angelkiss6963
Have you filed this claim with your own carrier? Do you have collision coverage? If so your carrier can pay to repair your vehicle then if your company and the other one cannot agree more than likely the claim will go to arbitration (which is binding). For the final outcome....Hang in there, I think you are in the 'right'. Has the other company made any offer of their idea of percentage of liablity?
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Lori
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| Posted: Thu Mar 06, 2008 7:21 pm Post subject: |
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| I hear that term "binding" in alot of different things especially pertaining to court. What exactly is "binding"...just curious. |
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fireyone
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| Posted: Fri Mar 07, 2008 12:14 am Post subject: |
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You can't just leave us hanging on this, what's happening? 
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InsuranceMaze
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| Posted: Fri Mar 07, 2008 11:29 am Post subject: |
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''binding'' means it sticks....re: arbitration is binding, meaning the decision reached by the arb board...will not change and both carriers have to accept (and pay) based on that decision...(no appeals).
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Lori
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| Posted: Fri Mar 07, 2008 3:42 pm Post subject: |
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| Thanks Lori. That makes sense. I guess it saves a lot af appeals and other problems doing it this way. |
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fireyone
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| Posted: Sat Mar 08, 2008 7:38 am Post subject: |
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Many state require mediation or arbitration prior to the court hearing the case. These are usually non-binding in that, neither party is required to settle and the mediator or arbitrator cannot make them settle.
Sometimes both parties will agree to attending binding arbitration. This is where both parties agree to have a 3rd party hear their case, the arbitrator decides what should be done and each party is bound by this decision. |
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tcope
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| Posted: Sat Mar 08, 2008 1:02 pm Post subject: |
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| I'm hoping to never have to go through anything like that..ever. The law seems really hard to understand...I'm guessing you guys have lots of schooling and experience...Thanks for explaining. |
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fireyone
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| Posted: Sat Mar 08, 2008 2:18 pm Post subject: |
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| Quote: | | Many state require mediation or arbitration prior to the court hearing the case. |
It's been my understanding (if I'm remembering my law classes correctly  ) that mediation is not binding, arbitration is....course what I was speaking to was .....crap tcope what is it called? The arb that 'most' carriers are members of? something something company arbitration?
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Lori
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| Posted: Sun Mar 09, 2008 5:39 pm Post subject: |
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| Quote: | | The arb that 'most' carriers are members of? something something company arbitration? |
Your not going to make me say Arbitration Forums Inc., are you?
AFI saves carries a lot of money but they don't play by the same rules of a legal court... not even close. In many cases this makes it a "roll of the dice" situation. You can have a case that would win in court every time, just to loose that case in AFI. The main problem is that the carriers never get to see the other carriers support documentation (only their contentions). So, for example, one carrier could have a recorded statement from one person who would not give their statement to the other carrier. The statement could be bias and incorrect. But it will never be shown as the carrier without the statement does not get a chance to see the statement or speak to the person giving it.
Adjusters can also be very creative in their submission, using certain words to sway AFI or even excluding all information that could hurt their case.
| Quote: | | Sometimes both parties will agree to attending binding arbitration. |
Usually court appointed mediation is not binding, but arbitration is something different. I think arbitration is allowed in every state as it's simply an agreement between two parties to have an independent 3rd party decide the outcome of a dispute. I'm betting their are laws governing how this is done but I can't see that any state would not allow it.
Mediation would not be binding as it's simply a mediator going back and forth between the two secluded parties and trying to beat them both up so that they get to some common ground. I _love_ mediation's! It's funny to have the mediator come into your room, spend 30 seconds getting your point of view and latest offer and then shooting the breeze for 20 minutes as not to let the other party know how easy you were in agreeing to some term ("man, he's been in there for 20 minutes... they must really be debating something"). |
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tcope
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| Posted: Mon Mar 10, 2008 11:45 am Post subject: |
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| Quote: | | Your not going to make me say Arbitration Forums Inc., are you? |
No that's not it....I'll find out today, something like inner company arbitatration, blah blah...in my part of the world, company's (that agree) are members (signatures) of this arb. It isn't a company...it is comprised of higher level (branch managers on up I think) claims people from different company's that make up this 'arb board'...maybe six or eight from different companies they meet at a prescribed time (say every month) and hear the arb claims, then render decisions....It is not an arb. company....
I agree tcope I love love love mediation! Have even considered going into mediation myself....for those of you that don't know, they make a pretty penny for not too awful much effort!  
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Lori
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| Posted: Tue Mar 11, 2008 2:13 am Post subject: |
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| Go for it Lori from what I have seen on this site you really know your stuff. I think you'd do great. |
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fireyone
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| Posted: Tue Mar 11, 2008 4:39 am Post subject: |
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Inner company arbitatration is what I always called it and how it was always stated to me.
Lori, as an independent mediations were great. It was usually a 4 to 8 hour day with lunch on the attorney. Since I was just eye candy for the claimant, I spent the first 10 minutes going over the case with the carrier's attorney. The rest of the time was spent BSing with the attorney or mediator about other claims or the claimant's attorney. You couldn't beat the per hour pay and if you can hook up with some carrier attorney firms and they like you, you always get the call. It also always beat climbing a roof or chasing down a witness. |
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Dasfuk
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