Post by
don85259 »
https://forums.nicoclub.com/don85259-u7229.html
Fri Jun 06, 2003 8:58 am
I work for a major personal injury law firm here in Phoenix (Phillips and Lyon - we have the 1-800 injured number in Arizona and have been around since 1977) for the last ten years. I'm also a pre-law student at ASU. I worked for several attorneys in Kansas City for years before coming to Phoenix in 1993.
To clarify several things:
1. Generally a person is entitled to fair market value of their vehicle if it is deemed a total loss. Fair market value has nothing to do with what you owe, or what you generally paid for the vehicle. It is defined as what other comparable vehicles are currently selling for in the open market. Best way to do this is go to autotrader.com and plug in the same year, make and model, then call the results one by one and find out what they sold the vehicle for (if sold) or what they will take for same (if not sold). Average three of them and that pretty much is it. Don't forget to make reasonable adjustments for differences in options, mileage and condition.
2. Keep in mind it is generally up to the insurance company whether to repair or total a vehicle. They will generally do the cheapest option available to them. If your car is worth $8,000 and the initial damage estimate is only $3,000, they will likely repair every time. The closer the initial estimate approaches the fair market value of your vehicle, the easier it is to get it totalled. Sometimes threatening a future diminished resale value claim of your vehicle if they attempt repairs when it is a fairly close call will be enough to get them to total, but under most state's laws, the carrier makes that decision. Not the owner. It fascinates me how somebody else gets to determine what happens to your property but that is the way it is. Remember, as part of this analysis, the carrier considers the likelihood and amount of possible future supplements and the rental cost while your vehicle is in the shop being repaired.
3. In Arizona, as in most states, you have a duty to mitigate your damages if you get into an accident and the other driver's insurance drags their feet. This means you cannot wait, especially if your car is sitting in a tow lot or repair facility, cannot be driven, and/or you need a rental car. In fact, if you fail to mitigate your damages when adverse carrier places you on notice that they are "still investigating" or are denying liability, then they can refuse to pay for storage or ongoing rental expenses. At this point, you must IMMEDIATELY file a claim with your collision coverage (assuming you have it; if not, this mitigation process is somewhat rendered moot) and have your own insurance carrier process the claim. Keep in mind your carrier is immune from diminished value arguments as described in (2) above.
4. With respect to negligence per se, I'm familiar with the general concept, although in Arizona it generally doesn't exist with respect to negligence. We can get a punitive damages verdict if the defendant was impaired by drugs or alcohol, but generally otherwise the plaintiff has the burden of proving, to a preponderance of the evidence, that the def was responsible for causing the accident. Except for certain rare instances of res ipsa acts by a professional (res ipsa = the act speaks for itself), such as a doctor leaving forceps inside a patient post surgery, negligence "per se" does not exist in Arizona. I cannot speak for most other states' laws, but the last time I researched New York's personal injury laws, they had no-fault and compensation was not allowed for pain and suffering unless the injured party sustained severe injuries. I imagine D.C. has similar restrictions, as my research also shows D.C. has no fault. Out here in the wild west, no-fault does not exist thankfully.
5. Generally, the police report is merely a tool to assist in determining liability. Contrary to popular belief, the fact the cop cites the other driver really is of little probative value in a civil tort case and may not even be admissable in the civil trial over the same accident. Criminal law, such as that governing citations by a cop, require a much stronger showing of liability on the part of the plaintiff, which is the cop/state (beyond a reasonable doubt). Cops make mistakes and sometimes cite the wrong person. A much better determiner of fact is an actual eyeball witness. If you don't have any, but think someone may have witnessed the crash, run an ad looking for them. Do not depend on the police report to salvage the matter.
6. I would carefully examine D.C.'s traffic laws. For example, in Arizona, we have a left turn statute that would be helpful to you if the accident occurred here. The pertinent Arizona Revised Statute reads as follows:
28-772. Vehicle turning left at intersectionThe driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to a vehicle that is approaching from the opposite direction and that is within the intersection or so close to the intersection as to constitute an immediate hazard.
Since most states and jurisdictions follow the model civil traffic codes, it may be this statute is "boilerplate language" and appears in many other jurisdictions. In Arizona, the left turning driver is generally considered at fault, regardless of the color of the light. The only exception is if there was an eyeball witness saying the oncoming vehicle entered the intersection after the light turned red. Certainly if the light is yellow, the left turning vehicle is ALWAYS at fault.
7. This concept of contibutory negligence is downright scary. In Arizona, we follow the comparative negligence rule. Each party will bear the percentage of fault they were assessed at the time of verdict. Therefore, theoretically you could be 99% at fault and still collect one percent of your damages. The risk with that type of gross verdict is that the jury will often swing all the way and go to 100% if you are deemed to be at least 51% at fault. Still, if the jury says you are 70% at fault, you still get 30% of your damages from the other driver. It is most definitely NOT an all or nothing proposition here. Pity that is not available to you there.
8. Most insurance companies will raise your rates if you get into a chargeable accident, generally one where you are at least 51% at fault AND the carrier has to pay out more than $500.
9. Most attorneys locally charge 33% if the matter is concluded through negotiation and 40% if the matter is tried. Due to the advent of the low impact defense and Collossus, we have been litigating more and more cases lately, probably up to forty percent of our total practice. We charge 29% and 37% respectively, and some local attorneys charge 25% and 33% respectively. Keep in mind most fees are negotiable.
I hope this helps. Good luck no matter what happens.
--don
--don
