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 Posted: Wed Jul 21, 2010 7:48 am Post subject: Can I wait for the Police Report to come out before talking |
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I was in an auto accident on a highway...the traffic was at a dead stop...I pulled onto the shoulder and managed to not hit anyone. The driver behind me hit me. The officer said the report will come out in 6-8 days. My dad reported the accident to my insurance..because i had a concussion and went to the hospital. SO i have not spoken with my insurance..however I did call them back this evening and left a message as no one answered. Do you think its ok to stall them for the next 6 to 8 days...so I can wait until I am able to read the report. I just think its wise to know exactly what this officer is stating about the accident before opening my mouth to anyone.
Do you agree...is it ok be straight with them and tell them that I want to wait until the report comes out before giving my statement, will they understand..is that a common thing. Or will they be ticked off by that?
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carsaregood
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| Posted: Wed Jul 21, 2010 12:02 pm Post subject: |
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No, it's not okay to wait. Your carrier will need to get your statement about the facts of the loss, you want this to be done ASAP. They will also want to get the statement of the "at-fault" driver. If you have this information, give it them. If not, you will need to wait before the police report is released. If there are inconsistencies within the report (common), your insurer will investigate the matter.
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Trench
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| Posted: Wed Jul 21, 2010 3:48 pm Post subject: |
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There was an accident, it was already reported to the insurer, there is no reason to withhold information at this point. You have nothing to hide, right?
I take it your act of having "pulled onto the shoulder" was perhaps due to your inattention, and to avoid a collision you swerved out of the way. The party behind you did the same, only to collide with you.
If you are in a "comparative negligence" state, it's possible that you might be negligent to a small degree for being inattentive, but at least you avoided being the at-fault party in another collision. The party that ran into you, unless struck by another vehicle first, is probably the at-fault party with a greater percentage of negligence.
If you are in one of the few "contributory negligence" states, if even 1% at fault due to something like inattention, you cannot collect anything for your damages.
So, in your best interest, let your insurance company handle this, since it's already been reported to them.
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MaxHerr
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| Posted: Wed Jul 21, 2010 11:29 pm Post subject: |
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SO your saying if the other party is 99 percent at fault, and if I am just one percent at fault i will not be collecting anything. Well in that case before giving my statement it sure sounds logical to see what the cop has written first. I feel it should be my right to see it first...since any wrong statement can leave me out of collecting for my damages.
There is 2 years to settle a claim..i dont see why i have to be in such a rush.
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carsaregood
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| Posted: Wed Jul 21, 2010 11:33 pm Post subject: |
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And I dont see why i cant wait to see the cops report since his word is probably going to be the one that will be most believed...i should be able to see it first...since it will have such a big impact on my case. And now hearing that one percent of any error on my part will not get me a collection..
even if she is 99 percent at fault,...that gives me even more reason to wait until I can hear what the cop is saying.
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carsaregood
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| Posted: Wed Jul 21, 2010 11:33 pm Post subject: |
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And I dont see why i cant wait to see the cops report since his word is probably going to be the one that will be most believed...i should be able to see it first...since it will have such a big impact on my case. And now hearing that one percent of any error on my part will not get me a collection..
even if she is 99 percent at fault,...that gives me even more reason to wait until I can hear what the cop is saying.
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carsaregood
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| Posted: Wed Jul 21, 2010 11:41 pm Post subject: |
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Disregard my statement about there is 2 years to settle a claim. I agree it would be rediculous to wait over 2 weeks and further on to give my statement. But I believe I should have a right to see that report before having to give a statement. WHat i think is rediculous is that the report takes so long to come out. It should not take that long.
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carsaregood
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| Posted: Wed Jul 21, 2010 11:46 pm Post subject: |
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| Quote: | | And I dont see why i cant wait to see the cops report since his word is probably going to be the one that will be most believed...i should be able to see it first...since it will have such a big impact on my case. |
Although a police report is an official record, it is often not what's in the report that decides whose at fault in the claim. For example; I just finished an accident involving a semi truck (my insured) and another driver. Even though the insured (truck driver) was cited for failing to yeild in the police report, I denied the claimant's claim against the truck driver because the claimant had ample time to slow down and avoid the collision. So do I consider what the police state in their report is going to decide whose at fault in a claim? Never. If you were like this driver, your inattention while driving (not saying you were) may infact be a reason why you will not collect.
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Trench
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| Posted: Thu Jul 22, 2010 5:26 am Post subject: |
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| Quote: | | SO your saying if the other party is 99 percent at fault, and if I am just one percent at fault i will not be collecting anything. |
I did not make that judgment. You need to carefully re-read what I wrote. Not knowing what state you are in, there are two possible forms of negligence, but only one will be operative in your state's tort law. Either "comparative" or "contributory". I simply offered the two possible doctrines of negligence that operate for you to consider.
Most states have adopted the comparative negligence doctrine, which weighs each party's involvement in the events leading up to the tort -- in your case, a collision. If one party is 40% at fault, and the other party is 60% at fault, the party with the greater share of negligence is judged to be at fault. But to the extent that the other party contributed to the tort (40% in my example), their claim is diminished by that amount.
So if the damages were $10,000, the reduction would be $4,000, and the at-fault party would be responsible for $6,000 of the damages.
But, under the doctrine of contributory negligence, if a party is just 1% at-fault for their own damages, there is no award for that or their other 99% of the damages. It is a free pass to the 99% at-fault party.
If you tell us in what state this event occurred, we could tell you which doctrine of negligence applies to your incident.
By the tone of your response, my previous description of the event must be somewhat accurate. A case of inattention. In a contributory negligence state, that's going to be a dead-bang loser. Hopefully, you're in a comparative negligence state.
However, as Trench indicates above, the "last clear chance" rule could be invoked as a defense, and allow an insurer to avoid the claim. The theory: if you had maintained a "safe following distance" there would have been no collision and no need to swerve ("pull") onto the shoulder.
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MaxHerr
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| Posted: Thu Jul 22, 2010 5:56 am Post subject: |
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I am in CALIFORNIA...is that a comparitive negligence state???
I talked with my dad and brother and they gave me their support I am not at fault..I will be calling the insurance tomorrow.
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carsaregood
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| Posted: Thu Jul 22, 2010 7:03 am Post subject: |
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Your story should be your story and should not be changed by what the police report states. You want to give your statement to your insurance company yesterday or now or in the morning since yesterday is not possible and since it is the middle of the night I doubt the adjuster is in. If you want to hold off on giving a statement to the other carrier you have every right to do so.
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Dasfuk
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| Posted: Thu Jul 22, 2010 7:17 am Post subject: |
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Well, people don't always swerve to the shoulder due to avoiding what is ahead. Sometimes when I am behind someone and I come closer towards them...sometimes they dont like the speed I am coming towards them with...and they will pull onto the shoulder as a precaution to avoid me colliding with them.
I pulled onto the shoulder because I saw with my peripheral vision in the rear view mirror a car coming closer towards me at a fast pace and I stopped onto the shoulder to avoid her colliding with me. She was going to crash into a car at the speed she was going no matter what...whether it be into the left lane, or the right lane, but she chose to crash into the car on the shoulder which happened to be mine. Before I started slowing down to the upcoming stopped traffic...the cop asked how far behind me she was. I told him she wasnt really far away, but she wasnt real close either, somewhere in the middle. So she had enough of a distance to have slowed down...that is if SHE was actually paying attention to the car ahead (mine), and to the other cars ahead as well. SHe could have clearly seen the cars in the right lane ahead were at a complete stop. I wasnt driving a big suv obstructing her view..she could have seen along the sides of my car and even through my untinted windows in daylight that the cars in our lane ahead were at a complete stop. Now I just wish I could see the police report...because I was running on adrenaline after being stuck on the side of the highway crying in fear as the cars whipped past me...I had a concussion..I was really out of it and scared, and seemed a bit hyper I would imagine.
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| Posted: Thu Jul 22, 2010 11:20 am Post subject: |
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carsaregood,
You state that you had a concussion.
Could you describe what occurred for you to have an concussion from a Rear Impact? It seem very unusual to me.
Just wondering.
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FK
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| Posted: Thu Jul 22, 2010 11:39 am Post subject: |
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It sounds to me like this is a case of inattention. Usually when the police report lists under contributing circumstances inattention will always be the at fault driver. Because of this, an insurance company will list that driver as the at-fault party. She will listed as D1 or Driver 1 on the report. Do you know if she received a ticket? Even though the report isn't ready, call the police and see if they will tell you what Driver 1 was cited for.
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Trench
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| Posted: Thu Jul 22, 2010 12:41 pm Post subject: |
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| Quote: | | I talked with my dad and brother and they gave me their support I am not at fault. |
Only important if either one is the judge in your case, but since they are relatives, they would legally have to recuse themselves.
Yes, carsaregood, California is a COMPARATIVE negligence state, so as long as you are less than 50% responsible for your damages, you will be entitled to some recovery from the other party.
Pulling onto the shoulder of the freeway for any reason other than "an emergency" (such as a vehicle disablement) technically violates the "sign law" in the Vehicle Code. That's the section that describes a white sign with black lettering, such as those on the CA freeways that state "Emergency Parking Only as a "directional" sign that must be obeyed (like the signs "Right Lane Must Turn Right"). It is not uncommon to be cited for that violation by law enforcement, and the other driver could have been (either that, or passing on the right).
However, the at fault party's insurance company could try to raise the defense that YOU should not have been on the shoulder either if your vehicle was not disabled, even if it was a last-ditch effort to avoid a collision with their insured. Had you not pulled onto the shoulder, the collision might have been avoided. (Their argument, not mine.)
Well, that's an argument that carries a lot more weight in one of the other contributory negligence states, not so much in California. Here, it could raise your "percentage of involvement". To 50%? Not likely. 10% to 25% is probably more reasonable. If you end up in front of a judge, you may have less to worry about than if in front of a jury, but some of our judges are idiots who ignore the obvious and hand down ridiculous decisions almost as often as the juries do.
The important factors in the accident report (I assume CHP, not city police or county sheriff) are the other party's approximate speed as estimated by the officer, which could have been unsafe for the conditions (did her airbag deploy? That only happens above about 15-18 mph), and her statement as to the reason she collided with you -- does it demonstrate inattention ("I was looking at my cell phone", a Vehicle Code violation), or does she maintain you suddenly pulled in front of her while she was driving on the shoulder? (since passing on the right, especially on the shoulder, that's also a problem for her, not you).
So, while my opinion means nothing in court either, you should not hesitate to cooperate with the claim investigation. Accident report in hand or not. As Trench has said, the accident report means less to the insurance company than you might believe. And speaking from first hand knowledge, some accident reports would be better off having never been written.
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