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Pikey
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I was in a parking lot and was side swiped by a stupid lady. Estimates are $1900 worth of damage. The cop was called. He said he can't fill out an official accident report because it happened on private property (strip mall parking lot). It was 100% the other lady's fault. She admitted it to me. She was speeding/unsafe following distance/illegal right side shoulder pass.

I only have liability because my car is only worth $1500 (technically totaled I know, but still drivable). Basically, her insurance company said there is no proof of fault (even after I faxed in pics of the accident scene) and they aren't paying for anything. Meanwhile, I have a passenger side door that is smashed in and won't open.


What are my options at this point? Can I take her to small claims/civil court for the repair compensation?

5/26/2010 1:35:11 PM

MattJM321
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It sounds like an incident that both parties could be at fault. Unless you have evidence that the other driver was negligent (crossed into your lane), you're gonna have a tough case to prove. I would ask the adjustor if he spoke to any witnesses. Also, did the other driver admit guilt to the cop? Do you have the cop's information? Do you have any video from the mall?

All in all though, your agent would be the most helpful person to contact about this. Or let me guess...you don't have an agent because you went with GEICO?

5/26/2010 1:39:22 PM

DaBird
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small claims court is definitely a good option. you could also involve your insurance company...if you file with them its then in their interest to chase down the offending party.

5/26/2010 1:39:59 PM

AntecK7
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^^^how bad does your back hurt

5/26/2010 1:41:19 PM

MattJM321
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^Insurance fraud isn't cute or funny

5/26/2010 1:48:05 PM

jethromoore
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A strip mall parking lot is considered a "public vehicular area" (PVA) and most of the laws that apply to roads also apply to PVA*. NC requires an officer to fill out an accident report in the event that the property damage exceeds $1000.

Quote :
"Investigation by Officer. – The appropriate law enforcement agency must investigate a reportable accident."

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_20/GS_20-166.1.html

Quote :
"(33b) Reportable Crash. – A crash involving a motor vehicle that results in one or more of the following:

a. Death or injury of a human being.

b. Total property damage of one thousand dollars ($1,000) or more, or property damage of any amount to a vehicle seized pursuant to G. S. 20-28.3."

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_20/GS_20-4.01.html

Quote :
"(32) Public Vehicular Area. – Any area within the State of North Carolina that meets one or more of the following requirements:

...

2. Any service station, drive-in theater, supermarket, store, restaurant, or office building, or any other business, residential, or municipal establishment providing parking space whether the business or establishment is open or closed."

Same as previous link


If I were you I'd call the police back and tell them you'd like to file a formal complaint for the refusal of them to investigate a reportable crash on a PVA. I've never had to file a complaint like this so hopefully the system works and they put you in touch with the right person (IA or something?). This complaint is going to help you out in small claims court, especially if the judge asks why there was no report.

*
Quote :
"(a) No person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing."

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_20/GS_20-141.html



[Edited on May 26, 2010 at 2:11 PM. Reason : ]

5/26/2010 1:59:01 PM

Skack
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Quote :
"you could also involve your insurance company...if you file with them its then in their interest to chase down the offending party."


It's highly unlikely that he has collision coverage on a $1500 car.

[Edited on May 26, 2010 at 2:16 PM. Reason : l]

5/26/2010 2:15:50 PM

jocristian
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well... I was gonna say that sounds like a lazy ass cop but ^^ beat me to it

Quote :
"The cop was called. He said he can't fill out an official accident report because it happened on private property (strip mall parking lot)"

5/26/2010 2:21:37 PM

Master_Yoda
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Didnt know too much on the PVA bit that jethromoore brought up, but if that fails small claims court. I assume the responding officer heard the lady say she was at fault. Hes now a witness. While he isnt required by law as an officer to show in small claims, you can probably subpoena him.

File and talk to yours, still have a claim put in to theirs, if they refuse it, its all admissible in court. Yours probably will help you out on this, esp if it goes to small claims.

SAVE ALL YOUR PAPERWORK!!!!

5/26/2010 2:30:41 PM

Pikey
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Quote :
"I only have liability because my car is only worth $1500 "

Liability coverage only. My insurance company could care less. They're not gonna do anything.

Quote :
"It sounds like an incident that both parties could be at fault. Unless you have evidence that the other driver was negligent (crossed into your lane), you're gonna have a tough case to prove."

She is definitely 100% at fault.

Here is a pic of the scene: I am the gold chrystler trying to make a right turn. She is the black honda trying to pass me on the SIDE TO I AM TURNING. Yes, my blinker was on. Yes, I braked well in advance. I wasn't going more the 15mph.




This did not take place in NC.

5/26/2010 2:32:45 PM

jethromoore
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What state did it occur in?

5/26/2010 2:37:06 PM

Pikey
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Delaware

5/26/2010 2:38:30 PM

Lokken
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I would have punched a bitch in the face

5/26/2010 2:42:30 PM

TKE-Teg
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Dude, you have a POS Chrysler. Just be glad you're done with it



Seriously though, GL sorting this out.

5/26/2010 2:46:34 PM

jethromoore
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Not sure about Delaware's PVA and accident reporting requirements but there is this (most of these laws are very similar state to state because they were adopted "back in the day" from the Uniform Vehicle Code):

Quote :
"§ 4152. Required position and method of turning at intersections.

(a) The driver of a vehicle intending to turn at an intersection shall do so as follows:

(1) Right Turns. -- Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway. "


Not sure about Delaware's contributory negligence, comparative negligence, or "no-fault" status, but in NC you'd be screwed and unable to recover any damages because you'd be at least 1% negligent for violating our same law (IMO the proof is right there in the picture) because NC is a pure contributory negligence state (for now).

EDIT: I'd call it 50/50 where you violated the turning requirements and the other car violated passing on the right requirements. All this assumes the rules of the road apply to PVAs in DE though (I'm not sure if they do or not).

[Edited on May 26, 2010 at 3:04 PM. Reason : ]

5/26/2010 3:02:27 PM

BigHitSunday
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IMO based on that picture i couldnt say who is at fault


someone is out of position but based on the fact there are no lines or anything I couldnt say who

its not like she ran up on the curb to get by you and shes already at the hood of your car so you possibly should have noticed before collision?

looks like a pretty large road to me

5/26/2010 3:03:30 PM

Skack
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Are the skidmarks on the left yours?

5/26/2010 3:30:34 PM

NCSUALUM
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looks like neither is at fault. Suck it up and buy a real car.

5/26/2010 5:26:38 PM

MattJM321
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Yea good luck with that one. I HATE people that turn right slow as crap.

5/26/2010 5:54:37 PM

BigHitSunday
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plus dude is like way out in the middle of the road man

5/26/2010 6:37:20 PM

The Cricket
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Just by judging from the pic, I would say it's her fault. No idea why the hell you're all the way in left field, but she shouldn't have run up on you, I doubt it's a four lane hwy. just my $.02

5/26/2010 6:48:26 PM

rufus
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^ it looks more like both of their faults, judging solely from that picture. he's waaay out in the middle of the road for no reason.

5/26/2010 7:28:23 PM

m52ncsu
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i cant determine fault from that pic, it almost looks like she was turning and you cut her off and she had to slam on brakes

5/26/2010 8:48:33 PM

DalesDeadBug
In Pressed Silk
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gotta swing wide in those chrysler pontoons

5/26/2010 9:26:17 PM

wolfpackgrrr
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Quote :
"it looks more like both of their faults, judging solely from that picture. he's waaay out in the middle of the road for no reason."


Yep. In NC at least, both parties would be found at fault and you'd both be screwed. You're not going to get anything out of her insurance company from the looks of it.

If the car was only $1500, you'd just be better off buying another $1500 car than getting those damages fixed. Or just don't plan on having anyone ride shotgun

5/26/2010 9:48:58 PM

pawprint
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Sucks dude. Call the police back and document everything.

[Edited on May 26, 2010 at 11:29 PM. Reason : .]

5/26/2010 11:28:56 PM

Senez
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sucks dude but you suck at driving as bad as she does. what the hell were you doing in damn near the middle of the road anyway?

5/27/2010 10:08:28 AM

AstralEngine
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If the road is one lane (which it appears to be in the picture) then he is perfectly within his legal rights to travel in the middle of it.

5/27/2010 10:26:17 AM

Skack
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^ I agree. Looks like the lady just got way too anxious and ruined both their cars in the process. I still wonder if the OP was doing some wonky driving of his own. Especially if that set of skidmarks on the left was his. Either way, just because the person in front of you is driving wonky doesn't make it ok to try to pass them on the right on a 2 lane road.

[Edited on May 27, 2010 at 10:35 AM. Reason : s]

5/27/2010 10:34:52 AM

Smath74
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why the fuck did you try to make a right turn from the middle of the road?

5/27/2010 11:00:49 AM

BigHitSunday
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i seriously seriously doubt that is a fuckin one lane road

especially since there is a car traveling in the opposite direction

5/27/2010 11:48:06 AM

Lokken
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looks like the driver wasnt sure they wanted to turn there and decided they did at the last minute

5/27/2010 11:56:42 AM

David0603
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Quote :
"why the fuck did you try to make a right turn from the middle of the road?"


I don't get this either. I've almost hit a few people in a similar fashion because they feel the need to pull way the fuck out just to make a simple turn. I can understand it in cramped parking lots, but not on regular roads.

5/27/2010 12:03:51 PM

DPK
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Alright there's two scenarios here that I see and I sketched them out for clarity. Why two? Because I'm not entirely sure about how the road looks because I can't see what's past the cars:


Both of these I can find fault in Pikey's driving.

In scenario 1 (left), he swings wide left before going right. The driver of the black car could have thought Pikey was going to continue traveling forward since he was far left of turning into the side-street. So the black car could have assumed it was clear to proceed to move forward and turn right. Of this scenario, it's shared fault. Pikey being a dumbass and making a right turn from near center of the road and the following car for assuming Pikey knows how to make a right turn.

In scenario 2 (right), he swings right into the turn lane for the black car cutting them off. In this scenario for duh obvious reasons, I find Pikey 100% at fault for not using mirrors and turning across multiple lanes of traffic.

Suck it up, you are at fault in some way here.

5/27/2010 12:32:27 PM

Pikey
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Scenario #1 is exactly what happened. The road is two lanes and very wide. I was turning right... She was going straight. She admitted she was in a hurry because "she had an infant at home with a high fever" and was unfamiliar with the roads here.

Even if I was at a complete stop or even if I swung a little wide to make the turn (neither of which occurred), there is no reason to try to pass me on the right. She was driving inattentively.

And those skid marks on the left were hers... indication the speed at which she was traveling and the distance to which she was following me.




Anyway, my real question is do I have the option to take her personally to court for damages even after her insurance company denied my claims.



[Edited on May 27, 2010 at 1:03 PM. Reason : k]

5/27/2010 12:58:54 PM

Agent 0
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who takes a right turn that wide?

5/27/2010 1:24:55 PM

ParksNrec
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is it not possible that he was pushed further out by the car undercutting him?

5/27/2010 1:26:17 PM

MattJM321
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you'd have to take her insurance company to court

5/27/2010 1:28:11 PM

jethromoore
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Quote :
"If the road is one lane (which it appears to be in the picture) then he is perfectly within his legal rights to travel in the middle of it."


He does have a right to travel down the middle if it could be shown it was a one way street, but he also has the lawful duty to approach and make the turn "as close as practicable to the right-hand curb or edge of the roadway" (see my previous post... forgot to link it there: (http://delcode.delaware.gov/title21/c041/sc06/index.shtml)

I mean she absolutely had no right to pass him on the right but he also has the duty to make a proper right turn:

Quote :
"§ 4117. When overtaking on the right is permitted.

(a) The driver of a vehicle may overtake and pass upon the right of another vehicle only under conditions permitting such movement in safety. In no event, except as permitted in subsection (c) of this section, shall such movement be made by driving off the roadway, main traveled portion or regular moving traffic lane of the highway.

(b) Overtaking and passing on the right, except as permitted herein, shall be unlawful:

(1) When the vehicle overtaken is making or about to make a left turn;

(2) Upon any roadway which is officially marked for more than 1 traffic lane in 1 direction;

(3) Upon any roadway on which traffic is restricted to 1 direction of movement and the roadway is of sufficient width for 2 or more lanes of moving vehicles.

(c) When the vehicle overtaken is making or about to make a left turn, the vehicle approaching from the rear may pass on the right using the shoulder if necessary. "

http://delcode.delaware.gov/title21/c041/sc03/index.shtml

It appears that DE laws follow a form of the comparative fault rules:

Quote :
"Proportional Comparative Fault at 51%

The states that have adopted proportional comparative fault bar recovery if you are more than 51% at fault for the accident. In other words, you cannot file a liability claim and lawsuit against the other driver’s negligence if you were more than 51% at fault. For example, Dennis hit Teri’s car while driving in excess of 25 miles per hour over the speed limit while Teri was attempting to cross the road. Even though Teri was partially at fault for not waiting until the road was completely clear before crossing, the insurance company allocated fault to Dennis at 60% due to his excessive speed. Even though Dennis suffered a broken arm from the accident, he is not entitled to recover for his injury due to the fact that he was more than 51% at fault for the accident. States: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming. "

http://accident-law.freeadvice.com/auto/car-accident-claim-fault.htm

This would mean that if a judge did find 50/50 fault, she would be responsible for 50% of the damage to your car you'd be responsible for 50% to her car (meaning your liability insurance would come into play). So in theory, if both cars suffered $1500 in damage, then your liability would pay $750 to her and hers would pay $750 to you. Now if you did pursue this and were found 51% at fault you'd be screwed and wouldn't be able to get $ but your own insurance company would have to pay out (the flip-side is you'd get $750 and she'd get nothing if she was found 51%).

If I were you I'd call your own insurance up to touch base (I mean you sent her insurance company pictures possibly implicating yourself) because you are just giving them time to (possibly) build a case for her. To answer your question though, it is my understanding that you could take her to small claims court but you'd likely be facing off against her being represented by a lawyer from her insurance company because her liability insurance is what will pay, not her directly (how it works in NC anyways). Then again, your insurance company would have an interest to protect you from being found 51% or more at fault as to not pay out liability to her, so maybe they'd represent you too... I dunno?

[Edited on May 27, 2010 at 1:39 PM. Reason : ]

5/27/2010 1:36:34 PM

wolfpackgrrr
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Quote :
"you'd have to take her insurance company to court"


This and they'll eat you alive since you were also breaking traffic laws.

5/27/2010 7:11:51 PM

gunzz
IS NÚMERO UNO
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so what laws do you people think the OP broke b/c i dont see any

istn it illegal any way you look at it to pass on the right?

5/27/2010 7:21:19 PM

Pikey
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Yeah, I'm not sure what laws you think I broke...

5/27/2010 8:33:33 PM

Ragged
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the common sence law that ALL northerners swing wide for no fucking reason to turn their junk.

5/27/2010 9:04:03 PM

Pikey
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That's inadmissible in court.

5/27/2010 9:10:48 PM

nicklepickle
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ha what a moron i would say you were 100% at fault from turning from the wrong side of the road, she probably saw your blinker but didnt know what you were doing/didnt care since you werent doing it properly

Quote :
"istn it illegal any way you look at it to pass on the right?"
If I were the other lady i wouldnt have probably known what the hell she was trying to do. so just drove on by her. In fact this pretty much was how some idiot totaled my car. And they like the OP were at fault.

[Edited on May 27, 2010 at 9:29 PM. Reason : sadfasfs]

5/27/2010 9:26:34 PM

Moox
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That road is easily the width of 4 lanes.

You were in the middle, she was in the right.

You cut right, she slammed on the brakes to avoid your lane change (or turn as you seem to call it) without looking.

She obviously slowed down enough to prevent a serious accident given the lack of visible damage and the fact that the vehicles have not moved position but mere inches.


Face it, you contributed.

5/27/2010 9:27:21 PM

wolfpackgrrr
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Quote :
"so what laws do you people think the OP broke b/c i dont see any

istn it illegal any way you look at it to pass on the right?"


jethromoore covered it thoroughly.

5/27/2010 9:48:51 PM

flatline
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wow, a shit ton of people with no legal education/clue...nice

5/27/2010 9:58:10 PM

m52ncsu
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Quote :
"common sence law"

5/27/2010 10:35:15 PM

Phelps
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I used to work for an insurance company as an adjuster. That means I would either deny or or pay claims after investigating liability.

The lack of a police report really doesn't mean anything. Obviously I would look at it to see what the officer thought but in some cases I would go against his report if there was evidence to support it.

What insurance company denied your claim? Just curious. Also, I didn't see where they gave justification for denying your claim. They owe it to you to tell you their insured's side of the story and why they are denying. They can't just say they aren't paying.

At this point you are pretty screwed though. This is why having collision is good, so your insurance company could arbitrate with the other. I understand why you don't have it though. Anyway, you can most certainly sue the person in whatever Delaware court is appropriate. I'm sure they have some equivalent of small claims. When there is property damage only though, a lawyer isn't going to want to go near it. So it's all up to you.

If you go to court make it simple. Duty owed, duty breach, and damages. She had a duty not to run into your ass, she failed at it, and caused $$$ damages.

Before going to court though just bug the shit out of the insurance company and see if they get tired of dealing with you and pay the claim. Don't get your hopes up.

5/28/2010 8:01:57 AM

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