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Insurance Law/Unsafe Lane Change vs. Failure to Yield

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Question
Had a question similar to one recently answered.

My son was travelling southbound on the interstate and exited onto the acdess road.  At this particular exit, there are two lanes, but no lane markings.  He exited into the right hand lane in order to turn into a gas station.  A pickup truck in the right lane of the access road rear-ended him approximately 40 feet after the yield sign.  The police report cites factor 4 (unsafe lane change) for my son and factor 39 (failure to yield ROW - Yield Sign) for the other driver.

My insurance company attributed 70% cause to the other driver and 30% to my son.  The other company states "less than 51%" for their driver so they aren't paying.  I didn't get the collision coverage, so my insurance can't subrogate.  Do you think the 70/30 split is reasonable if I sue in small claims, or will it come out 50/50 and I'll wind up eating the loss plus court costs.  I, of course, understand that this is only an opinion, and there are no guarantees.

Thanks!

Answer
Greg,

Sorry to hear about your son's problem.

A couple of things to consider ...

The traffic on the access road must yield right of way to traffic coming off the exit across ALL lanes so the burden of proof exists with the other guy. When someone rear-ends another car, the presumption of a violation is on them.

You mention that there were 2 lanes of traffic but no markings. ??? Google the Texas Transportation Code and search for information regarding lane markings. It may be that there was only one lane actually on the service road and it just happened to be a wide spot. If that was the case, then your son could NOT have made an "improper lane change" since he had the ROW.

Just because some insurance company makes an arbitrary decision to assign a percentage of fault doesn't make it set in stone.

While the other insurance company does not owe a duty to deal with you in good faith, they will be required to cover the costs of defending their insured in whatever court it goes to so they may consider going ahead and paying the claim rather than eating the defense costs ... and still possibly having to pay the claim as well.

Put all the facts together and send them a formal demand ... then make your decision based on their response at that point.

Hope this helps.

Kevin Hromas
JD, EGA, RPA, PLCS, HCRI-R/C, CPIU, WINDŽ Umpire
Kevin Hromas & Associates
... A Division of US Insurance Information LLC
www.KevinHromas.com

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Kevin Hromas

Expertise

I am a licensed, executive general adjuster currently holding a Texas resident P&C license (614250), New Mexico non-resident all lines license (248774), Oklahoma non-resident P/F/M license (A299561), Florida non-resident P&C license (E117051) and a National Flood Insurance Program certification (06040100). My areas of expertise involve property and casualty issues in both residential and commercial policies with regards to claims practices and issues. I deal extensively with Lloyd's of London commercial policies and various domestic carriers for residential policies.

Experience

After a 20 year career as a General Contractor, I was employed by Allstate Insurance as an adjuster in Texas, holding various postitions within the property claims department. After leaving Allstate, I specialized in handling losses associated with major catastrophes through-out the country. (Hurricanes Isabel, Charlie, Wilma, Katrina, Ike, etc., hail storms, floods.) I am currently retained as an expert by multiple insurance defense firms in Texas for issues in litigation. I am also a certified Umpire for formal appraisals.

Organizations
Member - Society of Registered Professional Adjusters Fellow - Council on Litigation Management Member - Property and Casualty Association Member - Texas Independent Insurances Adjusters Association Member - National Association of independent Insurance Adjusters Member - Houston Claims Association

Publications
Claims Magazine (www.ClaimsMag.com and then search 'Kevin Hromas' for a full listing of articles and quotes.) www.ClaimsPages.com, www.ProAdjuster.org, www.KevinHromas.com

Education/Credentials
JD - University of Houston Law Center - 1992 BA - Southwest Texas State University - 1980 AA - South Plains College - 1977 PLCS - Personal Lines Coverage Specialist

Past/Present Clients
Certain Underwriters at Lloyd's, London, Fulbright & Jaworski (Law Firm), Bracket & Ellis (Law Firm) Thamm & O'Briant (Law Firm) Sheehy, Ware & Pappas (Law Firm) Walker, Wilcox and Matousek (Law Firm) Financial Guarantee Underwriters

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