Expert: Anne - 3/4/2008

Question
My wife got into a car accident in the City of Shenandoah, TX.  The accident occurred on an access road.  She was in the far right lane of a 3-lane access road.  She was hit in the rear of my car on the driver's side, pushing in the bumper, breaking the tail light, breaking welds between the rear quarter panel and inner fender, and bending the fender, totaling roughly 3k in damage.  This amount totaled out my car (1994 Honda Del Sol) which prior to the accident was in really good shape.  There was a Harris County Constable not too far behind who called the accident in, but was not able to fully see what happened.  When the Shenandoah police officer that was called arrived to the scene, he took a statement from my wife, and then took a statement from the other driver, who in the report stated that she was driving while tired and or asleep at the wheel and was on medication for a condition that she had.  In the report, it was documented that she failed to control her speed, was driving while tired and or asleep and was under the influence of a prescription drug of some sort.  The report also showed a sketch of how the accident occurred based on the car's damage.  A citation was NOT issued to the driver who hit my wife.  The Shenandoah police officer ALSO told my wife that based on the report AND the how the damage was on my car that we would have no problem with the insurance company accepting fault on the other driver.  Before I even had time to file a claim against the other driver, she called her insurance company and lied to them saying my wife traveled into her lane and hit her!  So she tells the officer one thing, and turns around and LIES to the her insurance company (GEICO) in order to file a claim against me.  With the evidence provided to my insurance adjuster, her claim was denied, BUT so was my claim even though the report clearly states that my wife wasn't at fault!  So with that, the claims went to arbitration, where GEICO states that they had a phone conversation with the officer who wrote the report stating that he could not be 100% on how the accident happened, even though he was the one who wrote the report AND he got a verbal statement from the other driver about her impaired condition.  The statement that GEICO had of the conversation was not a recorded one that you could listen to, but one that was written by GEICO.  Based SOLELY on that statement which was taken well after the accident occurred, the arbitration panel concluded it was a "one person's word vs the other person's" and that no one would receive a settlement even if the evidence that was collected at the scene of the accident clearly shows fault in the driver who hit my wife.  So what now, who do I go after to get justice???  Who do I file complaints to?  At this point and time, my insurance company (Travelers) fixed my car.

Answer
Hello Michael,

This is perhaps one of the most difficult areas of insurance. The insurance company is bound by the decision of the arbitration panel. Most jurisdictions do not allow them to appeal this decision.

However,

The fact that the insurance company is bound by an arbitration does not mean that you cannot seek your own recovery. In many states, you can still go after the person that cause the accident. The person that hit you still owes you damages regardless of what the insurance companies decide. The insurance companies are bound because they have a contract where they previously agree that they will be bound and they will not appeal.

This does not mean you can seek recovery directly in a court of law. This however does not mean that you have a good case. It is possible that a judge agrees with the arbitration panel. Judges could or could not play deference to that decision. Also, if you go to a court of law (if not a small claims court matter), the judge may ask for the decision and follow their finding. It appears that the substantive evidence could help your case, but again it is very subjective.

You can complain against the office of the insurance commissioner of your state, but this will not change their decision.

Check with attorney in your jurisdiction before you make any decision in your claim. They can help you decide if pursuing your case is worth it.  

Good Luck,
Anne

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