I was recently involved in a car accident. The police report that was filed at the scene puts 100% fault on the other party. Because I only had liability and the police report put fault on other party, my insurance company couldnt do anything and told me to deal with the other company since they were going to be liable for damage costs. So i communicated and worked with the other parties insurance company.
Eventually, what ended up happening, their insurance company got a hold of a witness (45 days after accident)saying the light was red when i crossed the intersection. Because of this, they denied any fault/liability despite the police report.
Now I am filing a small claims against the people and I want to know how they determine fault in these cases. Being that California is a pure comparative fault state, how would liability be determined, and is that something insurance companies do, or in a small claims court?
The details of accident:
I was traveling west on highway(45 mph limit) around the speed limit and other party was facing east, attempting to make a left turn. I was already in motion and saw the car stationary waiting for me to cross ( i noticed car ahead of time) so I proceeded to cross the intersection (light was transitioning from green-yellow-green). When i was a couple of feet from entering the intersection, the car made an abrupt left turn cutting right in front of me, giving me no time to stop or maneuver to avoid the accident. In my eyes, the other diver practiced bad judgement by making an unsafe turn into oncoming traffic and not waiting for traffic to clear-a perspective that the police agreed with according to the report. I was riding by myself and paying attention to the road(not using cell phone or any any other distraction). The other party consisted of a couple in the car. I believe they weren't paying attention to traffic or they practiced bad complete bad judgement when they turned into oncoming traffic.
But due to their witnesses stating the light was red when i crossed (not in police report) the insurance company found a way to avoid fault. The statement was made 45 days after accident and I feel there are disparities from between their statement, what they initially claimed, and what happened.
Because we live in a society where truth matters little to insurance companies and it is moreover about them trying to get out of paying up, I got stuck with the cost because I naively cooperated with them.
I didn't try to fake injuries and due to this, attorney's were reluctant to take the case. In the end insurance found a way to not pay, and they said they were not responsible (no talk about liability in terms of percentage even dicussed-i imagine because I had no representation).
I have filed small claim and want to get an idea how this might work. Will percentage of liability be determined or is it a strict win or loose case? What should i do? I am talking to an honest attorney who has agreed to look over the case, but aside from that i would appreciate some advice.
1. Your action in Small Claims Court cannot use an 'honest' or a 'dishonest' attorney. Parties represent themselves.
2. The deciding factors in all cases are (a) evidence and (b) credibility.
(a) Evidence. The best evidence you have is the police report. It would usually contain statements of the parties. Read carefully what he other party said. Did (s)he make any admissions? Does the report contain any information with which you can impeach the other party.
The other party's best evidence is their witness. Is the witness going to be present or the defendant going to produce the statement from the witness? Object to the statement because it is "hearsay". Remind the judge that the witness is not on the police report and that s(he) showed up 45 days after the accident.
(b) Credibility and demeanor. If the witness appears in court, be nice to him and her. Do not accuse anyone of lying or be outwardly hostile. See if you could impeach the witness. Ask the judge if you could ask a few questions of the witness. Have a list of questions prepared. Listen to the answers. Do not ignore the answers and stick to your list. Do not interrupt the judge. Here are some of the pointers:
Please tell the court:
*Have you and the D(defendant) met before ....(the date of the accident)?
*How did you find out about the D(efendant)?
*How did you first communicate with the D (efendant)?
*Where were you when the accident happened?
*Did you see how the accident happened?
*Can you descibe the vehicle I was driving?
Make? Model? How about color?
*Can you describe the vehicle I was in?
*What color was it? Do you recall its make and model.
You can come up with other questions relating to position and movement of the vehicles after hte impacytt. Did they remain in the same place or moved. Ask how the drivers approached each other. Who came out first and came over to whom? In short ask details that only a real witness would know. Then point out to the judge the discrepancies etween wahat happened and the lack of recollection of details as well as wrong answers. Good luck to you.
Fault will be determined based on the evidence presented to the judge. Unfortunately, it sounds like they have an independent witness which is very detrimental to intersection cases when there is a "he said, she said" situation. You should try to use the fact that you were proceeding straight and the other vehicle was turning in your direction in your favor. Vehicles that are turning at an intersection have a duty to yield to the vehicles proceeding straight unless they have a green turning arrow.
A personal injury attorney works on a contingency fee basis. Often, if there is a small or no injury, it is not worth the time for an attorney to handle the case and it is better suited for a small claims action like you filed. With an independent witness, I would not be surprised if the insurance company would have denied your claim with or without representation.
Legal basis for your claim: Vehicle Code 21801(a) requires a person making the left turn to yield the right of way until it is safe to make the turn. The bigger question is just how well the other party's witness testimony will be received. Other counsel have proposed some good questions to ask to try to attack the witness, but you may want to have the investigating officer testify on your behalf, pointing out that this other witness never came forward at the time of the initial investigation. You can arrange for the officer to testify via subpoena. (for mor information on how, check out the following web link- http://www.courts.ca.gov/1013.htm )
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