Sources of Recovery in Motor Vehicle Claims
Coverage tragedy is the bane of car crash claims. Horrible injuries. Good facts that establish liability. But not enough insurance to adequately compensate the victim for the serious injuries sustained. It is important for an attorney to consider all possible sources of recovery.
Car Insurance & Coverage for the TortfeasorThe obvious first source is the insurance policy on the vehicle that was the cause of the crash. This is the primary policy. However, if the negligent driver is not the owner of the vehicle, check to see if the driver was separately insured. Although the driver’s policy is secondary, it can provide additional coverage once the primary policy is exhausted. There may be excess or umbrella policies that could provide additional insurance for the negligent driver.
You must also discover if the driver was in the course and scope of employment so that the employer’s insurance can be tapped. Under the doctrine of respondeat superior, employers are responsible for the negligence of their employees if the crash occurred in the course of employment.
There may also be a separate claim for negligent entrustment against the owner of the vehicle.
Before settling any claim for policy limits, you must verify all of this information and, at the very least, get an affidavit from the driver that divulges whether any of this coverage might be available.
Underinsured Motorist (UIM) CoverageAn assets check of the negligent driver who caused the crash might reveal a source of ultimate recovery of a verdict. Even though the insurance coverage may be minimal, there might be other assets from which compensation can be obtained.
The next source of recovery is any available UIM coverage. In addition to liability coverage, every car owner should purchase uninsured (UM) and underinsured (UIM) coverage to protect YOU, in the event you are injured by another driver who does not have insurance, or who does not have enough insurance. Check to see if the car insurance policy on the car in which you were riding, or your own automobile insurance policy, includes UM and UIM coverage. Also review the car insurance policies of any family member with whom you reside. All of these are possible sources of UIM coverage and you may be able to stack one policy on top of another for increased coverage. Be careful. Before settling with the negligent tortfeasor for policy limits, you must get “consent to settle” from the UIM carrier or you may forfeit your right to UIM coverage.
Claims against Other Possible DefendantsRead the police report carefully. Look for evidence that the car might have “failed” in some capacity that contributed to the crash. If so, try to find out from defendant or his insurer if there is a claim against an auto repair shop where, perhaps, the car had been poorly serviced before the accident. Remember, the defendant will want to deflect blame and she may happily provide you with this information.
The negligence of third parties, not just the other driver, may have been a substantial factor in causing the accident. If it happened at an intersection, look for overhanging trees or landscaping that interfered with sight lines or obscured traffic signs. Under Section 6112 of the Vehicle Code, the adjoining landowner is responsible for removing any vegetation that obstructs the view of drivers on adjacent roadways. Be sure to take photographs from all angles.
If there is any evidence of recent construction, you may have a viable claim against a private contractor who created a dangerous condition, either by interfering with the normal flow of traffic on the roadway, or by creating obstructions to the vision of motorists who were traveling on the highway. Even where the contractor was not working on the road, but was working on nearby property, there may be negligence that contributed to the crash. Take photographs of the scene. Look for parked vehicles, lane barriers, piles of dirt, walls or other physical objects that could interfere with a driver’s ability to see the other vehicle or to become aware of dangers ahead.
Go back and drive the road again, at about the time of day when the accident occurred. Simulate, as much as possible, the conditions at the time of the accident. Look for anything that could have contributed to the crash. Take pictures to document the way the scene looks. Interview nearby residents for leads on prior similar accidents. In serious injury cases, it is important to have an expert on the scene as quickly as possible to look for any possible road design defects that might have been a contributing cause of the crash.
Consider a product liability claim against the manufacturer of the vehicle for a possible recovery based on a defective product or the crashworthiness of the vehicle. Defective infant seats or failed safety systems inside the car may have enhanced the injuries sustained. Obviously, you must preserve the evidence to give to your expert for inspection.
If the intersection where the crash occurred is controlled by traffic signals, observe their operation and see if the lights seem to be changing properly. Look for brand new traffic signs that may be an indication that they were recently installed, and perhaps replaced signs that had been missing.
If the crash was at night, visit the scene at night and check the streetlights. My firm handled a claim in which the Pennsylvania Superior Court (Wilson vs. PECO) overturned a summary judgment in favor of PECO, holding that it is possible for this utility company to be liable based on the poor lighting at an intersection.
Dram Shop ClaimsIf the other driver appeared to be intoxicated at the scene, it is important to determine if he or she was cited by the police for DUI. Investigate where the defendant had been drinking before the accident. If you can show that he was served while visibly intoxicated, you will have a Dram Shop Act claim against the bar or bars where he was served.