Who has the burden of proof?

discogram723 · #1 10-12-2006, 01:52 AM

If a vehicle that ran into me was curbside before pulling off, wouldn't it be clear and simple that this driver was in the wrong, due to the NYS rules of the road?

I ask this because my medical bills are piling up and I fear that I may need a cervical operation, which could have been avoided if the other driver was paying close attention to what he was doing.

I realize that I should just let my attorney handle my case but I cannot help feeling angry about being in constant pain and knowing that I, in no way,shape or form contributed to this.

ecmst12 · #2 10-12-2006, 08:37 AM

What exactly is the situation? Very few accidents are 100% "clear and simple" and insurance companies are always going to investigate and try to find reasons why their insured was not at fault. That's their job. Yes, you should let your lawyer handle the case.

By the way, putting "less specified details" into your post is not going to get you a better answer.

discogram723 · #3 10-12-2006, 09:03 AM

Sorry about that. I turned left onto a main street where I noticed a commercial vehicle parked illegally(between 2 fire hydrants and 2 no standing bus stops). As I was driving past the vehicle, WHAM!, he runs into the rear passenger door(damage was from the door to the rear bumper). He proceeds to get out of his vehicle and asks "where did you come from?" which I led to believe that I may have been in his blind spot when he committed to making a turn onto the road. Since I didn't have a cell phone with me, I had to borrow someone else's phone to place the 1st 911 call. Police came to the scene and spoke to me for approxoimately 1 minute and then the other driver(out of my vision). There was no witness reported on the police report.

When my attorney(I was injured and have had lumbar surgery; a possible cervical operation is in the near future) spoke with the other insurance company, they stated that they now have a witness who saw the accident and stated that I was on a cellular phone and ran into the vehicle(both lies). In order for a person to see this accident, they had to be in the street watching both vehicles. I was told it was a store front owner(possibly the bakery that is a wholesaler for this commercial foods giant).

I was not on any phone and had none in my posession at the time of the accident. I took photos of the damage that this commercial vehicle caused and you can tell who was at fault. The insurance company is going solely on the drivers' and their "witness" statements. I have reported this to my insurance and NYS Insurance Department for investigation. My insurance company said that I was 0% liable for this accident based on their investigation.

Is the company just denying fault, which will eventually lead to a court date, as a stall tactic? They are continuously denying ANY fault. They said that the vehicle was already in the road and I ran into it. If a person knows anything about the law of physics, they know that their "witness" statement holds no water at all.

Since this "witness" obviously perjured his/her self during an EUO that was conducted by my insurance company, couldn't formal charges be brought against this person?

ecmst12 · #4 10-12-2006, 09:24 AM

If the insurance company refuses to accept liability, the only choice is to file suit and go to court. But you can't do that until your treatment is complete or close to it. How long ago did this happen? They may just be stalling, but all you can do is sue them. And your lawyer knows that it's too soon to do that.

If you own a cell phone, the records will show that you weren't on it at the time. If you don't own one, that's also evidence. And there will also be records of where the 911 call was placed from - if you had had a cell phone with you, why would you call 911 from someone else's phone? You have a good case, in the long run you will prevail. The best thing you can do right now is concentrate on your medical treatment and healing from your injuries.

discogram723 · #5 10-12-2006, 09:30 AM

I thank you ecmst12 for your responses. The accident occurred on July 27, 2005. As I am not yet "out of the woods" I realize that I must concentrate on getting better. The only thing that makes recovery so much more intolerable(I already have to deal with the physical pain and the mental aspects) is to know that I did not cause this to happen and the responsible party will not even own up to their responsibility.

Take care and God Bless.

moburkes · #6 10-12-2006, 10:11 AM

How much have your medical bills totalled? You have at least 50,000 PIP coverage available to you under your own policy.

discogram723 · #7 10-12-2006, 10:25 AM

It was my father's vehicle (he also has an additional 50,000 on the PIP side). His personal injury is 100/300. The thing is, last October I went for an IME with their doctors and they told me that I was fine and able to go back to work. My attorney intends on fighting this since I have been receiving medical attention for nearly 15 months now, had lumbar surgery and may need cervical intervention soon(MRI films look bad).

moburkes · #8 10-12-2006, 10:49 AM

Quote:

Originally Posted by discogram723

It was my father's vehicle (he also has an additional 50,000 on the PIP side). His personal injury is 100/300. The thing is, last October I went for an IME with their doctors and they told me that I was fine and able to go back to work. My attorney intends on fighting this since I have been receiving medical attention for nearly 15 months now, had lumbar surgery and may need cervical intervention soon(MRI films look bad).

No, his addl PIP shouldn't be 100/300. His liability or UM/UIM may be 100/300.

discogram723 · #9 10-12-2006, 10:59 AM

I meant 100 per person 300 per accident . The PIP is 50, with an additional 50 under his policy.

moburkes · #10 10-12-2006, 11:04 AM

Quote:

Originally Posted by discogram723

I meant 100 per person 300 per accident . The PIP is 50, with an additional 50 under his policy.

Sure, I know that. You said that his personal injury is 100/300. His personal injury (which is his PIP coverage) is $50k, which is very different from his liability or his uninsured/underinsured motorist coverage. Therefore, the 100/300, or at least some of it (for underinsured motorist coverage) is not available to you. I am simply pointing out that you are referencing coverages which do not apply to you (except, MAYBE a portion of the underinsured motorist coverage).

So, if you have your own auto insurance policy, and live in NY, your own PIP will cover up to $50k. Unless I am mistaken, your dad's won't cover it either, unless you are a member of his household. Do you expect your bills to be more than the 50K?

discogram723 · #11 10-12-2006, 11:27 AM

My medical bills are more in the 60-70K range at this point. If cervical surgery is warranted, I expect over 100k easy.

discogram723 · #12 10-12-2006, 11:31 AM

My father owns several properties and I happen to reside in one of them. His main address is where the insurance bills are sent. He did tell me that he notified the insurance that I was a driver but I was not put on the insurance.

moburkes · #13 10-12-2006, 11:33 AM

Quote:

Originally Posted by discogram723

My father owns several properties and I happen to reside in one of them. His main address is where the insurance bills are sent. He did tell me that he notified the insurance that I was a driver but I was not put on the insurance.

So you are not a hh member, and should be covered by your own insurance. Do you have any?

discogram723 · #14 10-12-2006, 11:38 AM

I have Medicare and Medicaid but my attorney said that he was going to attempt a lost wages claim. My insurance has been footing the bill thusfar (I know they will need to be reimbursed after the case settles). The only positive spin is that my father did give me permission to operate the vehicle.

moburkes · #15 10-12-2006, 11:45 AM

Okay. So, your bills are being paid, you understand that your health insurance costs will be reimbursed by the at fault party. Sometimes fault isn't determined quickly. Sometimes each person is given a percentage of the fault. However, none of us can tell you that the accident was clearly the other driver's fault. Both insurance companies will do thorough investigations. Good luck, and take those pain meds!