Auto accident liability and uninsured motorist

Factual Questions
1

(Disclaimer: I know I’m not getting legal advice here, etc. Just looking for general pointers to understand the situation.)

My girlfriend was in a fender bender recently, with damage to both vehicles but no injuries. She had no insurance, so she was cited for that as well as “failure to yield”. The other driver filed an uninsured motorist claim, and now the insurer is coming after my girlfriend for a hefty sum.

I’ve been on the other side of an uninsured motorist claim before and was told, literally, “we’ll make his life miserable” until the uninsured driver came up with the money, so I gather it’s normal for the insurance company to go after the uninsured driver for the balance: in other words, it’s not really “insurance” in cases like this, it’s more like a collection service. But, presumably, their only authority to collect money from my girlfriend in the first place comes from her liability to the other driver.

So suppose she successfully challenges the “failure to yield” ticket by showing that she acted responsibly(*), and that nothing she reasonably could’ve done would’ve prevented the accident. Would she still owe anything to the other driver (and thus to the insurer), or is her liability to the driver a separate matter? And either way, would it be unwise to deal with the insurer before the ticket has been resolved?

  • As responsibly as you can act while driving without insurance, that is. Sigh.
2

[QUOTE=Mr2001]
Would she still owe anything to the other driver (and thus to the insurer), or is her liability to the driver a separate matter?

  • As responsibly as you can act while driving without insurance, that is. Sigh.
    [/QUOTE]

It’s a separate issue.

You’re going to have to ask an attorney who is licensed in your jurisdiction.

3

[QUOTE=Mr2001]
I’ve been on the other side of an uninsured motorist claim before and was told, literally, “we’ll make his life miserable” until the uninsured driver came up with the money, so I gather it’s normal for the insurance company to go after the uninsured driver for the balance: in other words, it’s not really “insurance” in cases like this, it’s more like a collection service. But, presumably, their only authority to collect money from my girlfriend in the first place comes from her liability to the other driver.
[/QUOTE]
It’s not a collection service, it is insurance. The difference is that the insured driver gets paid right away regardless of whether or not the insurance company can then collect back from the uninsured motorist.
When insurance pays out on a UM claim or for that matter a medical claim, property damage claim or a bodily injury claim, the insurance company gains the right to recover money owed from the responsible party. This process is called subrogation.
Here is a somewhat confusing Wiki article on subrogation.
Yes the insurance company can make her life miserable. They have entire staffs of lawyers that specialize in this.
Gfactornailed it. Talk to a lawyer.

4

We talked about some related issues in this thread: California UIM Arbitrator fees [retitled] - Factual Questions - Straight Dope Message Board

5

IANAL and all that, but here’s my experience and thoughts.

I was hit by an uninsured motorist a couple of years back. My insurance paid for my repairs.

From there…
They sent the guy that hit me progressively unfriendly and demanding letters to recover their money. He didn’t have it so…
They filed suit against him to recover the portion they paid, my deductible, and what I paid for a rental while my car was being repaired.
He didn’t show for the first hearing so the company recieved a default judgement against him.
At this point they have legal claim to the monies owed and can go through the procedures for wage garnishment, liens, and whatever other options they have.

What it came down to is this. The insurance company has no legal claim on her money until after she is sued and a judge says they do. They can send all the letters they want, but without a judgement they’re worth exactly the paper they’re printed on.

Having the failure to yield dismissed will help when it comes to trial but it will ultimately be up to judge/jury as to her responsibility. And it probably will come to trial. Be prepared to have your own lawyer, theirs will be very good at this.

This has been my experience, YMMV.

6

[QUOTE=Projammer]
Having the failure to yield dismissed will help when it comes to trial but it will ultimately be up to judge/jury as to her responsibility. And it probably will come to trial.
[/QUOTE]
This might sound confusing, but there are two kinds of law at work here. There is the criminal element of failure to yield because she broke a law which resulted in the citation. And there is the civil element in which she has a duty to not endanger others while she is driving. Civil matters are the arena of insurance because this deals with who is responsible for the event. Criminal deals more with what law was broken, by whom and what is the punishment–this is handled by the people with the blue clothes and keys to the barry place. When determining who is responsible for an accident, and to what, if any, degree that responsibility may be shared between the parties to the loss, criminal as well as civil aspects are evaluated. Overturning the citation could have an effect on how things go in court because this action would have the effect of saying, “She did NOT fail to yield, she didn’t do anything illegal” so there must have been something else going on for the collision to occur, possibly some kind of unsafe action on the other driver. But you’d need to prove what that was. But I’m not sure how much luck you’ll have overturning a FTY citation. If she had a stopsign and the other guy didn’t, forget it. If she was turning left on a green dot and was hit by oncoming traffic, forget it.

[QUOTE=Projammer]
Be prepared to have your own lawyer, theirs will be very good at this.
[/QUOTE]
This bears repeating.

7

She can contest the liability but just because she may not be convicted in traffic court doesn’t mean that the insurer will let up. She’d have to let the carrier sue her and argue liability in civil court. That’s why you get insurance, so someone will pay for the defense.

Better to cut a deal with the insurer, they’ll let her make payments. In some jurisdictions the insurer can get your license suspended if you don’t make restitution.

8

As previously stated this advice is pertantant to my own state and not yours.

That being said,

Go ahead and fight the ticket.

It can’t hurt. But realize whether the ticket is upheld or dismissed it does not change the fundamental question, was she negligent in a way to make her liable for the injuries caused.

In reality in my state most tickets given at the time of an accident are dismissed because the officer did not see the incident happen.

It is his best guess, but for example, if you hit someone from behind the officer can not testify that the car in front of you did not back into you instead of you hitting them.

The insurance company’s position is to try to figure out what will happen if they go to court and try to avoid the cost of doing so. Their determination is only a guess as to fault until a judge and a court of law actually determine fault or percentage of fault.

Your friend is liable if a court says so. Not until other wise.
Needless to say if it looks obvious that she is liable she may want to avoid a civil trial.

So as said get lawyer’s advice.

9

[QUOTE=Burton]
She can contest the liability but just because she may not be convicted in traffic court doesn’t mean that the insurer will let up. She’d have to let the carrier sue her and argue liability in civil court. That’s why you get insurance, so someone will pay for the defense.

Better to cut a deal with the insurer, they’ll let her make payments. In some jurisdictions the insurer can get your license suspended if you don’t make restitution.
[/QUOTE]

If they obtain a judgment in court then your girlfriend will have an unsatisfied judgment on her credit report at least until it’s paid in full.

Now that lenders are going to be acting responsibly again for the foreseeable future she doesn’t want that.

10

[QUOTE=MrPeabody]
As previously stated this advice is pertantant to my own state and not yours.

That being said,

Go ahead and fight the ticket.

It can’t hurt. But realize whether the ticket is upheld or dismissed it does not change the fundamental question, was she negligent in a way to make her liable for the injuries caused.

In reality in my state most tickets given at the time of an accident are dismissed because the officer did not see the incident happen.

It is his best guess, but for example, if you hit someone from behind the officer can not testify that the car in front of you did not back into you instead of you hitting them.

The insurance company’s position is to try to figure out what will happen if they go to court and try to avoid the cost of doing so. Their determination is only a guess as to fault until a judge and a court of law actually determine fault or percentage of fault.

Your friend is liable if a court says so. Not until other wise.
Needless to say if it looks obvious that she is liable she may want to avoid a civil trial.

So as said get lawyer’s advice.
[/QUOTE]

That is why we subpeona the other driver to appear in court. That is what they call a witness. Witness testimony + physical evidence + officer’s training and experience = conviction. Depending on the case and the evidence it is still possible to get a conviction without eyewitness testimony. It comes down to what the prosecutor feels like taking on. The more serious the accident, the more likely it is that the prosecutor will want to go to trial. For instance I have seen plenty of DWI accident cases which have been successfully prosecuted without an eyewitness to the actual accident. Of course as with all traffic violations, the vast majority are resolved with a plea bargain.

I don’t know the civil side or the insurance company side. However I do know that in NJ it is routine for a judge to give a “civil reservation” on any verdict, even on plea bargains and guilty pleas. This civil reservation states that any proceedings or plea agreements in municipal court can not be used in a civil case. I have never seen a request turned down by a judge. In fact when he goes into his spiel at the end I have seen the judge throw in the civil reservation even when the lawyer forgets to ask.

YMMV I can only speak of what happens in NJ.

As to the OP if your friend feels that she may be looking at civil damages as well as the traffic court, she needs a lawyer. In NJ driving without insurance can carry at least a $1000 fine, at least six months suspension and possible jail time. More if there is an accident, especially with injuries. Add to that a possible civil judgement and you can see why she needs a lawyer.

11

[QUOTE=Loach]
Depending on the case and the evidence it is still possible to get a conviction without eyewitness testimony. It comes down to what the prosecutor feels like taking on. The more serious the accident, the more likely it is that the prosecutor will want to go to trial. For instance I have seen plenty of DWI accident cases which have been successfully prosecuted without an eyewitness to the actual accident.
[/QUOTE]

Yep. And the prosecution (both sides, really) can hire an accident reconstruction expert to testify about what the physical evidence says about how the accident happened.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2005app\5362&invol=1

http://www.judicial.state.sc.us/opinions//unpublishedopinions/HTMLFiles/COA/2005-UP-639.htm

12

No one’s hiring an expert for a fender bender. She better have proof of insurance when she goes before the judge for the driving uninsured citiation though.

13

[QUOTE=Burton]
No one’s hiring an expert for a fender bender. She better have proof of insurance when she goes before the judge for the driving uninsured citiation though.
[/QUOTE]

But it is very easy to bring in the other party involved to testify as to what happened. If one party doesn’t have insurance the other party is usually very eager to come into court. And an experienced officer who has years and hundred of accident behind him can still testify as to the physical evidence (skid marks, debris etc) even if a full reconstruction wasn’t done. I was commenting to the remark that most cases are dismissed if the officer was not an eyewitness. Maybe in some places but I would not count on it. As I was told long ago, we are not paid to record accidents, we are paid to investigate accidents.

14

[QUOTE=Loach]
And an experienced officer who has years and hundred of accident behind him can still testify as to the physical evidence (skid marks, debris etc) even if a full reconstruction wasn’t done.
[/QUOTE]

I should have mentioned that in my last post. In fact, one of the cases I cited says: