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Question
My accident happened in October.  It is now January and I have been waiting on word from insurance company for three months.
The accident happened on a wet, congested roadway.  There were five lanes on this street... Two for each direction and one in the middle as a turn lane.. There was no concrete median.  The unit which I was in the accident with was traveling parallel with me in the lane to my right.  I was in the lane closest to the turn lane. Due to the weather, traffic was slow to pick up from the light that had just turned.  I allowed extra space between the car ahead of me.  The gentleman in the truck then picked up speed to come around in front of me.  He gave no indication of his intent to come into my lane.  He failed to use signals or even a safe distance.  I assumed that the fact he came in front of my car at a 45 degree angle that he was trying to pass the vehicle in front of him. I tried to avoid the collision by turning as best as I could on wet pavement.  I ended up finally making contact with his vehicle.  I hit the gentleman at a 45 degree angle and I was half way between my original lane and the turn lane.  the other man's truck was almost into on coming traffic, so with no serious injuries we moved off of the roadway onto a parking lot.  
A good samaritan that witnessed the whole thing pulled over and gave me his contact information and told me to have the officer and my insurance to call him and he would give his testimony.  This samaritan followed us to the parking lot that we pulled into, so the gentleman that i was in the accident with seen him and was aware that there was a witness.  First off the guy that I hit didn't want to call police and get a report.  Second, I had to file a complaint with his insurance company, because he refused to do so.  The police report has me as unit one. I am assuming because I hit his car.  BUT.. the report is very neutral, having no human factors..The officer never puts any blame on either driver.  And typically in ky when you are rear ended it is very hard to prove that the one that hit you isn't at fault.  However, the police report has it determined as an angular accident , not a rear end collision.  It also has pre wreck actions for me as going straight and the gentleman as making left hand turn. The guy told the officer he was turning left.. but he was in far right hand lane.  He had less than 75 feet to manuever his vehicle from his lane to the road where he was trying to turn.  It was impossible to do in a safe manner.  So now two weeks ago, he decides to file an injury claim with my insurance company, in which they deny, because his statement just didn't make any sense, from what my adjuster told me.  He also didn't have a witness at this time which baffles me, because I would think with him wanting to win his claim that would be an important piece of information to use.  So now I have contacted his insurance company to see if they are going to fix my car.. all was well until yesterday when I was informed that he had a witness that they were trying to get a statement from.  WHAT?!?!?  My insurance company knew of no witness.. I had heard of no witness... No one arrived at the scene, no one had pulled over or approached us.  If he has a witness, then so be it.. truth has to come out.. angles and science don't lie.  But I am very concerned about the validity of the mysterious witnesses claim, and why is he just now utilizing this tool when he could've used him or her to fight the injury claim that he was denied.  I requested info on the witness, such as when they were added to the claim, and asked if they would intend to follow up with fraud charges, or purgery if they found the witness to be someone that was talked into or paid to do so.  What can I do, or should I do to make sure that I am not just pushed off.. I mean I have been very active with this I am not going to stop until my car is paid for.  Can I take him to small claims, and sue.. Maybe having my witness, and a map, diagrams, and my police report with pics of my car will at least get an unbiased perspective.  If I do so, and the judgement is for me, since small claims is a very small amount of money and my damages are over 5,000.00 could I then force his company to pay the difference, or what can I do? Thank you for all of your help!

Answer
 Hello Tamera,

There are a number of issues here.  Let's take one at a time.

First, I can't understand why it has taken 3 months for his carrier to conduct a liability investigation.  I assume you filed your property damage claim right after the accident.  Did you speak with them on a regular basis?  Did you provide a statement? Did they have the police report, photos of the vehicles, and a statement from the original witness that I assume was on the police report?

To make the point, these are the items that would have to be considered to reach a fair resolution - either settlement or denial.  From the facts you have presented, my opinion is that clearly the other driver is at fault for a variety of reasons and you deserve a settlement for your damages.  And, yes, it appears that the actual evidence supports you.  I am perplexed as to why the officer did not reach a decision of fault.  But that really doesn't matter, especially since you were not cited for anything.  Yes, a police report should be considered, however it also should never be the sole determining factor in an insurance company's liability decision.

What is more important is the account of the independent witness on the scene.

The fact that a witness shows up 3 months post accident is suspicious to say the least.  And quite frankly, unless there is a very real explanation for it, that witness should not be considered by anyone.  The only exception I can think of would be if the other driver located that witness via 911 records that can be verified.  But if that is the case, then why would it take so long for the witness to appear?  In my opinion, the emergence of this mystery witness is highly suspect.  The insurance adjuster should have the sense to realize that as well.

At this point you cannot really take any legal action, short of consulting with an attorney.  But since there were no injuries, it is unlikely that most attorneys would be interested in actually pursuing the case.  Attorney or not, you must wait until the insurance company makes a liability decision before you could even consider a small claims action.

Here is what you must do.  Be persistent.  If necessary, contact the adjuster every day to inquire on the status of the claim.  Be very polite. Insist on providing a statement. Offer to provide any information which might be missing.  Confirm they have the police report and that they have contacted the listed witness.  Have they inspected your vehicle damages?  If not, inquire how you can make your vehicle available for photographs and an appraisal.  If the adjuster says this is not necessary, that is ridiculous!  How is it remotely possible that a decision can be made without a complete set of damage photos!

If, however, this does occur then you need to take complete photos of your damages.  Start with 4 photos, one of each corner, then photograph the damages.  Do not take the photos so closely that it cannot be determined where they are on the vehicle.  And finally, take a photo of the vehicle, including the damages, from the angle of the impact.  Mail or email the photos directly to the adjuster.  Even if your company took photos, your photos, taken properly, are probably a better option.  Though you could send both (which would entail cooperation from your company).

And, by the way, it does not matter who actually "hit who".  What matters is the circumstances that led to the hit.  No, this is not a rear-ender.  Your assignment as "unit 1" should have no bearing on who was at fault, especially if the officer has not assigned fault. On the other hand, no "human factors"!?  What! This is one reason why police reports should not be considered as direct evidence.

The point is, the other company MUST make a liability decision - in writing.  That decision must either be fair settlement for your damages or a denial.  The reason for denial should be specified.

Only then could you consider a small claims action consistent with the laws of your state. You would need to research those laws or procedures, or consult with an attorney.

If the ruling is made in your favor, the insurance company would be responsible to protect their insured.  Simply put, they would be responsible for all of your damages within the limits of the policy.

Hope this helps.  Good luck!

Jane Pytel
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Jane Pytel

Expertise

I can answer questions related to auto accidents, auto damage, auto theft claims, or personal injury claims. I am specifically suited to answer questions concerning insurance investigations and the effects of those investigations such as claim delays, claim denials, examinations under oath, or the special investigations unit. I can answer most any question that relates to proper claims investigations, or claims handling procedures and processes. I have authored several ebooks which provide claim guidance for consumers. Those books are available on Amazon Kindle: Power To Profit - will provide you with the knowledge you need to overcome the patterned obstacles that insurance companies will use to delay, devalue, or deny your valid insurance claim. The No Nonsense Guide to Accident Settlement - Teaches you how to manage your claim, how to identify the precise tactics likely to be used against you, and how you must respond.

Experience

12 years of experience with 3 major insurance companies. I hold an all lines adjusters license in Florida. I am well versed in claims handling, claims investigations, and industry standards related to both. The bulk of my experience stems from my 10 years as a police officer / detective. Building on that investigative experience, I became an SIU (Special Investigations Unit) Investigator. Accordingly, my unique expertise lies in the investigation of claims. What is necessary and related, what is not necessary and related? What constitutes a fair claims investigation? What recourse is available for consumers who suspect they are experiencing unfair claims delays? During the course of my experience, I became a certified trainer, instructing adjusters and investigators proper techniques for claims investigation and claims handling.

Education/Credentials
B.A., Communications, University of Miami 350 credit hours of intense investigative training, Miami Dade Police 80 hours of investigative training, various Federal Agencies, Miami, Fl Intensive Accident Reconstruction and Pedestrian Injury Analysis, NHTSA, National Highway Traffic Safety Agency, Oklahoma City, OK 2 weeks Auto Damage Appraisal, Winston Salem, NC Legal Principles Claim Specialist, AEI

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