Disputing determination of fault - Injury accident

by E's Mom
(Austin TX)

Son is taking protected left hand turn and is hit by driver running red light. Time was approximately 12am. less than 2 blocks from our home.

Driver approaches one of the guys at the scene thinking it’s my son and offers to pay for damages if police aren’t called. Finally someone points him in the direction of my son who is visibly injured , before actually talking to my son driver hears sirens and takes of f on foot.

Son’s truck is t-boned on passenger side-front end of other car with lots of damage. I , mom, was at scene before police so I observed everything until the end. Son is injured, entire side of face is already bruised and swollen. EMS assures me that probably no concussion and check bone is not smashed.

I opt to take him home and keep an eye on him. Next day eye is bad - we go to ER - cat scan shows an orbital blowout --- more than half of the floor of the eye socket is destroyed. ER doc sets us up with a eye surgeon we go in on the following Monday. Surgery is the following Tuesday.

Has to get artificial plate inserted - half of face will stay numb for up to one year and may not get full feeling back. No vision loss thank goodness.

I file claim with my insurance company. When I finally talk to adjuster he is very interested in the injury.

Around this time I’m contacted by a detective who is assigned to case - person that talked to driver at scene identifies him in line up -- driver is charged with class C felony for not rendering aid.

In interviewing witness’s it’s discovered that driver has told several lies. He gives detective insurance information that is put on the police report but we find out it’s false information. Adjuster finds out about another policy after he was able to reach other driver. This is two weeks later.

We also find out that driver was cited for running light. I offered number of detective and additional witness’s but my adjuster declines. My son did give a statement to our insurance company , a mistake I hope I don’t live to regret.

Yesterday I receive the following two letters from insurance company dated the same date :
XXXXX has filed a liability claim against your policy ….

In response we have taken the following action: Made an offer to settle the bodily injury claim

Letter two : Settled the bodily injury claim

Based on our liability decision, we will not pursue collection of any damages you sustained including your deductible, if applicable. Therefore, we surrender, to you, our rights to recover your damages.

I contact (by email in hopes of having something in writing) and he replies telling me why they settled. He has determined that even though driver left scene he is going with that drivers statement and finding my son at 80% fault.

The entire settlement to other driver was less than $500.00. He also says his vendor (investigator) never saw the light go to a green arrow. I now have to go collision and have my rates hiked because of this decision. He never contacted any witness so he doesn’t even know the capacity of the other driver that night before fleeing. The other drivers statement claims he veered to the left to try and avoid but his car couldn’t possibly have wound up where it did had that been the case.

There was a witness there that saw the position of the cars before they had to be moved . He also stated part of his decision was based on the other driver not getting to give his version to APD because he left the scene.

I want to note that since I was mostly an observer when APD was at scene I saw the officer observe the light for some time , examined both autos , curbs etc. So they didn’t just show up and say give us your version and we’ll make it his fault and all go home.
Has anyone had this happen?

Do I have any rights here as far as what determined their decision and how much was paid to the other driver? Is this common for them to totally blow off an insured? The hit and run driver would appear to be in the good hands of my all state coverage and I out in the cold.

On the bright side after my adjuster stating (prior to being able to reach other driver for a statement) that if he couldn’t reach the other driver he would have to take my son’s word for what happened.

That gave me bad vibes so I consulted with an attorney I was referred to who seems to think I have a darn good case. My insurance company isn’t aware we have an attorney. I felt guilty about retaining an attorney for my son but sure am glad I did. From the beginning I really just wanted the truck repaired and my out of pocket back.

Attorney knows about settlement from my company but not the determination of fault - he told me to ask since I received nothing in writing about the settlement. I just found out late yesterday and will give him the information on Monday.

Everyone says attorney will be able to fight this and I hope so because I’m truly shocked at the determination. He’s basically calling my son and APD liars.

Is there really a chance of having the fault adjusted? I’m also concerned this will effect the determination of fault with the other insurance company as well and that is the one we will be dealing with.

I’m trying not to be emotional but I truly feel my company is not being fair and totally going against my son. Is this unusual for an insured’s own company to do this? Btw - I’ve never filed any claims with them in the past. Thanks for any reply!



Answer:


Hello E's Mom,

Well. It’s a good thing you have an attorney. Fighting your own insurance company on fault can be very hard (I am not trying to scare), but it is s fact. The problem is that most auto policies have something called ‘Right of Settlement Claim’ please see my notes on that clause here:

http://www.auto-insurance-claim-advice.com/Right-of-Settlement.html

This clause gives the insurance company a lot of power. Although they will not admit, they are settling the claim this way because of business reasons.

It has nothing to do with fault or justice, but all to do with the fact that they believe the other party can get a lawyer and they would have to pay too much to defend you (better to give this guy $500 now, than have to hire a lawyer to defend and have to pay the lawyer $1,000).

In the facts above, it sounds like an “arguable case” for both sides. The point of impact on your son’s car is to the front-side. In addition, he is making a left which in most states (TX probably also), the person making the left must yield the right of way to incoming traffic.

However, the other driver was cited for running a light???

If this is the case, this can change the entire situation. Again, a lawyer can help here because even on the face of the Right of Settlement clause, the insurance has a duty to advocate and defend YOU. That probably will be one of your lawyer’s moves.

There is really nothing I can tell you here other than this is common. Insurance companies do make business decisions all the time and they have clauses on the insurance policy that supports their position.

At this point you are represented and that is the best cause of action for you.

I hope this help and I truly hope your son’s eye and injury recovers promptly.

Good Luck
http://www.auto-insurance-claim-advice.com/