California Personal Injury and Insurance Blog

5 Totally Unsafe Car Moves

Parents magazine has a list in its July, 2008 edition with "5 Totally Unsafe Car Moves." Their top 5:

1. Climbing into the backseat, while the car is moving;
2. Picking up your baby while the car is moving;
3. Traveling with pets loose in the car;
4. Packing the car to the gills; (My car doesn't have gills, does yours?)
5. Forgetting to double-check the car seat.

I have to tell you, other than #3 and maybe #4, none of these ever come up. After three kids, I can not count any times when anyone climbed into the backseat to be with the kids. The idea never even cross our minds. Nor did #2 or #5. I have traveled with an old dog to the vet with him sitting next to me. And once in a while, we put a lot of luggage in the car for a road trip. (Although, with gas prices being so high, the road trips are done for a while.)

Here are my 5 totally unsafe car moves:

1. Putting on makeup while driving;
2. Shaving while driving;
3. Text messaging while driving;
4. Changing your clothes while driving;
5. Passing things between cars while driving.

Share your totally unsafe car moves with me. 

Liability: How is it determined?

In yesterday's post, I wrote about the proper investigation of an insurance claim: coverage, liability, damages. I am going to expand more on liability today. (Coverage is a lot more complicated. Liability is a better starting point for lay readers.)

Liability is basically "Who is at fault?" The easiest case to examine is an automobile collision. Two cars hit and someone must be at fault. How do you determine fault?

A good starting point is the police report. Why is it a starting point and not the ending point? Because a police report, in California, is not admissible evidence. A jury does not get to see the police report. Furthermore, the police report may be based on incomplete evidence, missing statements or may be inconclusive. But, it helps to start with the police report.

After reading the police report, the insurance company should talk to its insured. As an insured who has a claim made against your policy, you must cooperate with the insurance company. In other words, give them a statement about what happened. Answer the adjusters questions and give your side of the story.

After the insurance adjuster has talked to its insured, the adjuster should next try to talk to the other party. I recommend that if you are the "other party," you do not give a statement to the insurance company. It is not required. However, the adjuster will want to talk to you about the case. If no one is injured, you can talk to the adjuster. If there is an injury, DO NOT talk to the adjuster.

The adjuster should then talk to any independent witnesses. Someone's brother who was in the car is not an independent witness. An independent witness is someone who is not related to the parties, does not know the parties and saw what happened. Seeing the aftermath of a collision does not make a person a witness to what happened in the collision.

Finally, the adjuster should visit the scene of the collision. It is important to see where the collision happened, look for debris in the roadway or other signs. In the case of a disputed light, where each party says they had a green light, it is important for the adjuster to see the light and time the sequence of the light.

There, in a nutshell, is the proper method of conducting a liability investigation. Interestingly, a law firm should also speak to the parties, look at the scene and talk to witnesses.

In future posts, we will discuss liability and damages. Remember, if you have questions on an insurance claim email me.

Insurance Claims: An Overview of the Investigation

I get a lot of people who have questions about an insurance claim and do not understand why the claim is handled in a certain manner. Sometimes, the potential client has misunderstood. Sometimes, the adjuster has made a mistake. Sometimes, no one knows what is supposed to happen so no one has any idea what is actually going on. So, here is an overview of how a claim should be handled.

A claim is called in to an 800 number. (Some insurance companies take reports only from agents. Some insurance companies take reports online. Most have an 800 number to call.) A representative takes the basic information: name of the insured, policy number, time and date of the occurrence, etc.... The claim is then assigned a number and an adjuster. The caller should get this information on the phone.

When the adjuster gets a claim, the adjuster is supposed to handle the investigation in three steps:

1. Coverage. Is the claim covered? In other words, does the insurance policy have some exclusion that makes it so the event is not covered by the insurance policy. This could be an arson on a homeowners policy or a racing incident on an automobile policy. (Racing in your car on a track is not covered by your auto policy.) The adjuster will go through and determine if there is some reason the policy does not apply to the claim. If the claim is covered, the adjuster goes to step 2. If it is not covered, a denial letter is sent to the insured explaining why the claim is not covered.
2. Liability. Is the insured responsible for the damages? On an auto liability policy, the investigation means whether the insured caused the collision. On a homeowners liability claim, ie a slip and fall, the investigation is similar: did the insured do something to cause the incident or fail to do something to prevent it from happening? If the insured is liable, or partially liable, the adjuster goes to step 3. If the insured is not liable, a letter denying liability is sent to the other party.
3. Damages. What amount is owed by the policy? In a comprehensive or collision auto claim, the adjuster determines the repair cost, or if the repair cost is 80% or more of the replacement cost, then the replacement cost. In a liability claim for property damage, the adjuster makes the same analysis. In a bodily injury claim, the adjuster has to determine the extent of the injuries and the amount that would compensate the injured party for the injuries. This is where most arguments occur. What is a fair amount? How is it determined?

The short version: coverage, liability damages. Repeat. That is the proper method to handling an insurance claim. If you have an adjuster who wants to talk damages without knowing if the claim is covered, be afraid, be very afraid!

In future posts, I will go into detail on these issues and explain in more detail what should be done. 

Uninsured and in a collision: What happens?

What happens if you are in a collision and you have no insurance? Here is the story of how things happen.

Driver A (the other guy) turns a claim in to his insurance company. They pay for his damage. They then figure out you have no insurance. They turn the matter over to a collection agency. (Yes, they have an in house subrogation department, but they do not like dealing with people who have no insurance.) The collection agency starts to call you and harass you. They also tell you that your license can be suspended.

Pause in the story for this. Yes, your license can be suspended. DMV usually will not accept a SR-1 after 10 days. They may, but usually not. However, they do not need that to get your license suspended. If you have a judgment against you for a traffic collision and it is not paid, your license cna be suspended until such time as you pay the judgment - in full. That could be 30 days or 30 years.

Back to the story. If you do not agree to pay them, then they retain an attorney who will sue you. You will probably be sewer served. Check your county court regularly to see if you have been sued. If they win, you pay, file for BK or they suspend your license.

New York Times: Insurance Coverage Article

The New York Times wrote a great piece on car insurance for modified cars. (Look for the quote from me.) The introduction to the piece sums it up nicely:

Few drivers realize that aftermarket parts are generally not insured, so if you have an accident in your modified car, your insurer is not likely to reimburse you for the damaged add-ons. Even worse, in some cases insurers may deny the whole claim or cancel the policy.

The bottom line: if you have a car with modifications, check it once, check it twice and check it three times to make sure your insurance policy covers you. If you have any questions, ask your agent and get it in writing!

Copies of Insurance Policies

This is a fascinating topic for me. It came up in the course of an interview I gave to a reporter on a topic. (I will leave that for another time, after the article is published.) We discussed how you get a copy of an insurance policy.

I called the California Department of Insurance. I asked for a policy. After all, they keep them all there. The answer: The DOI does not give you copies of policies. Why? Because they don't know which policy, if any, you would get from a specific insurer.

So, I called some local agents. These were agents for some of the major insurance companies. I asked for a specimen policy. I was told that I could not get a specimen (sample) policy.

It is fascinating to me that insurance companies sell a product but they will not let you see the product before you buy it. Imagine buying a car without test driving it. Or buying a house sight unseen. You would never do that, but insurance companies won't let you see what you buy until after you buy it. Amazing! 

Good news for Allstate customers?

No, they haven't decided to start paying claims quickly and for a fair amount. That would be like a Lewis Carroll fairytale. Rather, the Dept. of Insurance has ordered Allstate to cut rates by 15%.

Allstate had requested permission for a 7% rate cut. The Department of Insurance wanted a 19% rate cut, according to its calculations. An administrative law judge ordered the 15% rate cut.

Allstate contends it is being unfairly singled out because it is in a fight with the DOI about its homeowners rates. Singled out? I think the decision by the judge supports that the DOI was much closer to the right number than Allstate was.

So, if you are an Allstate insured, expect to see a rate cut from Allstate - assuming it does not appeal.

FAQ: Where does 1/3 of the settlement go?

I have been asked lately about how a settlement breaks down. A lot of people seem to think that there is about 1/3 of the settlement that they never see. Let me see if I can help.

When you settle a case, there is a fee agreement with your attorney. Your attorney may take anywhere from 25 percent to 40 percent (some take more). Assume that your attorney takes thirty three percent (1/3) of the settlement. That leaves 67 percent (2/3) of the settlement. Then the attorney tells you that you get half of that, or 1/3 of the settlement. Where does that other 1/3 go?

Well, in most cases, your doctor or health insurance must be reimbursed. You received treatment for your injuries. The doctor may have treated you on a lien. In that case, the doctor gets paid back. Or, your health insurance may have paid for your treatment. In that case, it may need to be paid back.

In any event, you should ask your attorney for a breakdown of the settlement. He or she should show you where ever cent of your settlement goes.

Telemarketers and Collisions: YUCK!

Well, I was going to use a stronger word, but decided against it since this is a family blog. WOAI in San Antonio has a story on its website about telemarketers who call people who have been in collisions and try to get these people to sign up with attorneys.

Technically, the telemarketer tells the person to go see a clinic to be evaluated at. The clinic then refers the client to the attorney. However, same end result: someone who has been in a collision ends up being called by someone trying to get the collision victim to hire an attorney. It is absolutely disgusting.

This should be perfectly clear: you should make the call to the attorney - not the other way around. If an attorney, or anyone, calls you after a collision, you should not hire that person. It is that simple. You may need an attorney. You may not need an attorney. But, only you know that.

So, do not fall prey to these predators. This disgusting behavior should be outlawed in all 50 states. And every decent trial attorney should support that!

Driving Don'ts

While driving around over the last few days, I have seen some really bad driving. And by bad, I mean really, really bad driving that should have people's licenses taken away. So, with that in mind, I am going to give you my "Top 10 Driving Don'ts" from just this last week:

1. Do not eat soup out of a bowl with a spoon while driving. How, exactly, do you hold the bowl, the spoon, and steer at the same time?
2. Along those same lines, do not eat that hot fudge sundae until you get home!
3. Do not turn left from the far right lane. You can always turn right, then make a u-turn and go straight to get to the same point - and it is safer.
4. Do not tailgate the big rig. As his mudflaps say, if you can't see his mirrors, he cannot see you.
5. Do not drive at night with your lights off. How is anyone supposed to see you, Mr. Black Sports Car?
6. The curved freeway on ramp with 1 lane has 1 lane for a reason. Do not pass someone in the shoulder.
7. The police officer who is following the speed limit will pull you over when you pass him going more than 10 mph faster than he is going.
8. This is a special one for the ladies - do not put on your eye makeup while driving. Please?
9. For the guys - do not comb your hair with both hands.
10. Knees were meant for moving your legs, not driving!

If you have any driving don'ts, please share them. I am anxious to hear what you are seeing.