How might a judge view the following case...

[CarlJStoneham]

State: TX

I'll try to present the facts with as much honesty as possible.

Feb 10, 2005. On the way to closing on a house, a truck ahead of us has a large piece of fiberglass fly out of the bed and hit the front of our Toyota Highlander. We flag the driver down, stop and after surveying the mostly superficial damage, he agrees to pay for the damage out of pocket instead of filing an insurance claim. I agree (dumb idea, I know, but we're in a hurry to close). During this exchange, my wife stays in the car (I assume this would preclude her fromt estifying that he agreed to pay).

About 3 weeks later, I finally got around to calling him with a quote we had been given by the dealership for the repairs. After leaving several messages over the course of 2 weeks, I finally got in touch with him (he claimed that all of my messages had broken up) and gave him the quote then offered to take the SUV in for an estimate at a body shop he chose. he said he would call back the next day. After a week, I called him again and, as of today, have called approx 10times (including twice to the business he owns). He has yet to return any of my calls (the only time I've spoken to him since the accident was the day I got lucky and he answered his phone).

The damage is about $500, so I'm inclined to take him to Small Claims Court for the damages. My questions:

1. Can I sue him for the estimate (I'd hate to pay for the repairs and then have him back out (since they're cosmetic)).

2. Does my wife staying in the car mean I'm the only witness to the verbal contract?

2b. If she calls him and he agrees to get back to us with the number for a body shop, does that make her a second witness?

3. What proof am I lacking (I should be able to get the phone records)?

4. Any other suggestions? Storng case? Weak case? etc

Thanks in advance.

 

[rmet4nzkx]

Contact your insurance agent.

 

[CarlJStoneham]

Contact your insurance agent.

Thanks for the advice, but it's not in keeping with my question and actually does nothing to alleviate the situation. The deductible + premium increase is money out of my pocket. Why would I want to pay for something that someone else has agreed to fix? Please limit your response to my question. I specifically asked about SCC, not my agent. Unless he is going to represent me in court, your reply is pointless...

 

[rmet4nzkx]

No one can tell you how a judge will rule. The judge will ask you why you didn't make a claim with your/his insurance company. The fact that you had a house closing is not relevant.

 

[CarlJStoneham]

I didn't ask how they would rule. I asked how they would view the case. "Why didn't you file with your insurance" is a helpful point, one you could have made in the original post. My response would simply be "Because the defendant asked me not to."

You're apparently not educating yourself on the facts of thec ase. The case would not be "Why I didn't file with the insurance company" since that's not why I'm going to court. A verbal contract exists between the defendant and me (and my wife). He has failed to follow-through, so I am considering court as an option.

You apparently are just throwing out less-than-helpful information. Again, the court case is not about what I *should* have done but what I *did* do. You don't go to court over a contract dispute with a landlord and have the judge rule on whether you should have rented at a different apartment. The judge rules on the facts of the case. Since a verbal contract is enforceable in TX (as far as I know), this is about whether the defendant owes me the money or not, not whether I should have gone to the insurance agent.

So, unless you have something *useful* to add, please troll elsewhere...

 

[djohnson]

You can whine about the advice given, but it is correct. Your idea of a verbal contract is he said she said. If this person doesn't agree to it, you have no proof and the proof is is going to fall on you. It's called burden of proof in court. You have no proof, you didn't file with your insurance company and let them handle it, it looks bad for you. This guy can say you got his license number yesterday and just trying to get something for nothing, he has never laid eyes on you before. You can sure try, but I'm just giving you your chances.

Also How far were you back from the truck? Can you prove it?

 

[CarlJStoneham]

Well, my wife was in the car, so it's 2 testimonies to the events against his (at least according to my retired trial lawyer colleague) and we would both sign notarized statements to that effect. He also gave us both of his business cards, which might beg the question of how we got them if we just met him yesterday (though I guess we could have grabbed them out of a "Free Lunch" fishbowl at the local restaurant). "Retired Trial Lawyer Colleague" suggested this was meaningful proof. I guess if we really wanted to get nitpicky, the secretary and closing agent from the title company might be willing to sign statements that we called in to say we were late because "a truck just had something fly off and hit our car". I also have phone records from the end of February on showing that (if we were making this up) we've been planning it for over 2 months. The phone records should also show that the conversations ran 1-2 minutes and that there was one that lasted ?5? minutes (suggesting a conversation). I'm somewhat tempted to learn how to record a conversation on my cell phone in the event that I can actually get him on the line, though I guess that'd probably be inadmissable

As for how far back we were, perhaps 200 yards? At 60mph, I had approximately 2 seconds to react. I could do the Math quite easily. of course, it wouldn't be right on, but the object was in the air after its first bounce when it struck our bumper. I guess I could look for fiberglass shards in the bumper, though I imagine they're already gone (though Grissom could find 'em )

So, of course, I feel like I have a pretty solid case (for SCC) but I appreciate the advice. Much more helpful than "contact your insurance agent".

And as for whining about the advice given, it wasn't "correct" at all. First, as I said, "contact your insurance agent" has no bearing on the case at all, so it's misleading advice at best. In fact, the poster should be legally saavy enough to know that, at this point, the insurance agent had no bearing on the pending litigation, only on repairing the damage. Since I asked specifically about litigation...

Secondly, the advice about "The fact that you had a house closing is not relevant" is meaningless since I never said it WAS relevant. It was simply one of the circumstances that influenced our decision not to file it through insurance. If the judge asked us why, we would simply reply "Because the defendant asked us not to and, since we were preoccupied with closing our house, we aquiesced." As for "No one can tell you how a judge will rule", that was not my question. It was simply, "how might a judge view this" (which you answered, thank you ).

Your advice was useful, even if was not necessarily what I wanted to hear (which is why I posted in the first place). rmet4nzkx just addressed assumed questions with incorrect advice. I have noticed this trend in his/her other posts. When a question is asked, either ask more questions for clarification or stick to the facts of the case. Speaking of what I "*should* have done 2 months ago" is pointless since I don't own a time machine (perhaps you do) and I had already admitted to a mistake in that area. Responding to misread/assumed questions is similarly useless. Of all people, those who hang out on law forums should know this

 

[djohnson]

Then go by what your trial lawyer has told you. I don't think it will be as easily won as you think. The scenario I was giving you was just an example of how the burden of proof will be on you. Since you stated yourself your wife didn't get out of the vehicle, she is of no use except for what may have occured and could she pick that person out of a line up? And it will be brought up that spouse's cover for one another, so she may not be reliable. A co-worker could have just as easily given you the card. Not saying they did, just another example of what you are up against. The big thing is that it's not filed with your insurance company. If it was then they would pursue the other person. Not filing it, no matter what your reason, makes you look like you have something to hide and it's something that is hard to over come in court when the burden of proof lies with you. You may also be called upon to show you weren't following too close even if he admits the damage, they might find you a certain percentage at fault and split the bill by that percentage. There are a lot of unknowns and it is not going to be easy.

 

[rmet4nzkx]

Carl,
You are the troll and the one assuming things.

If you go to SCC the first thing the judge will ask you is did you contact your insurance agent and file a claim against the other party. That is why you have insurance, so that accident claims don't end up in SCC!

Why do I bring this point up over and over again, because the judge will ask you that question and you wanted to know how a judge would view/rule on your case. Did you ask your retired law professor or what ever about somehting called mitigation of damages?

Now on a practical level, if someone asked you to jump off the GG bridge or better yet, the University of Texas Tower, in Austin, would you do it just because someone else asked you to do it? The person at fault for the damage to your vehicle cannot compel you to not make appropriate reports and claims. So, what is the real reason you are so defensive, not wanting to be forthright and avoiding making a claim instead on wasting the court's precious time?

Just because you don't like advice doesn't make it incorrect. You might well have a case with merit but you could lose if you don't attempt to mitigate your losses, calling the man isn't enough.

Please read and think about your situation rather than sit here looking for things to complain about. If I was wrong, the attorneys on this forum would be all over me in a hot second.

 

[ENASNI]

hmm

If I was wrong, the attorneys on this forum would be all over me in a hot second.


Some of them just want you for your body... Doc..

This guy is a Troll with the JW syndrome and no sense of humor, telling senior members how to act... and preaching. Oy... What bridge did he crawl out from under?

 

[seniorjudge]

State: TX

I'll try to present the facts with as much honesty as possible.

Feb 10, 2005. On the way to closing on a house, a truck ahead of us has a large piece of fiberglass fly out of the bed and hit the front of our Toyota Highlander. We flag the driver down, stop and after surveying the mostly superficial damage, he agrees to pay for the damage out of pocket instead of filing an insurance claim. I agree (dumb idea, I know, but we're in a hurry to close). During this exchange, my wife stays in the car (I assume this would preclude her fromt estifying that he agreed to pay).

About 3 weeks later, I finally got around to calling him with a quote we had been given by the dealership for the repairs. After leaving several messages over the course of 2 weeks, I finally got in touch with him (he claimed that all of my messages had broken up) and gave him the quote then offered to take the SUV in for an estimate at a body shop he chose. he said he would call back the next day. After a week, I called him again and, as of today, have called approx 10times (including twice to the business he owns). He has yet to return any of my calls (the only time I've spoken to him since the accident was the day I got lucky and he answered his phone).

The damage is about $500, so I'm inclined to take him to Small Claims Court for the damages. My questions:

1. Can I sue him for the estimate (I'd hate to pay for the repairs and then have him back out (since they're cosmetic)).

2. Does my wife staying in the car mean I'm the only witness to the verbal contract?

2b. If she calls him and he agrees to get back to us with the number for a body shop, does that make her a second witness?

3. What proof am I lacking (I should be able to get the phone records)?

4. Any other suggestions? Storng case? Weak case? etc

Thanks in advance.

Q: Can I sue him for the estimate (I'd hate to pay for the repairs and then have him back out (since they're cosmetic)).

A: Sue him for whatever dollar damages you have.


Q: Does my wife staying in the car mean I'm the only witness to the verbal contract?

A: If she didn't hear anything, then the answer is yes.


Q: If she calls him and he agrees to get back to us with the number for a body shop, does that make her a second witness?

A: To what?


Q: What proof am I lacking (I should be able to get the phone records)?

A: You are lacking proof that an agreement was made. He will say y'all agreed that there was no damage and you both went on your separate ways.


Q: Any other suggestions? Storng case? Weak case? etc

A: You have a very weak case.


rmet4nzkx gave you the BEST advice in her first post. The second best advice was in her next post.

Why you don't want to listen to her is beyond me because you have a lousy case. You have damages (obviously) but no way to prove the guy did it to you.

 

[CarlJStoneham]

Perhaps you all misunderstand my reaction to rmet's post. I was not asking for advice about what I *should* have done or even what I should do now. rmet did not know that filing a claim (with my deductible and the invariable rise in my premium) wasn't worth the cost to repair the bumper (especially since it's cosmetic and I imagine I could paint over it (albeit sloppily)). I simply asked for an appraisal of my case as I presented the facts. "Contact your insurance agent" was neither helpful nor especially explicit. It smacked of "I don't really have time to help, so here's a morsel of wisdom". As I said in another post, by the time people start considering SCC (at least, people like me), it's become a serious matter and neither levity nor vagueness are helpful. As far as I can tell from re-reading this thread 5 times, noone has explained how filing a claim 2 months after the fact and suffering the deductible and premium increase would help. As far as I can tell, I'd be hard pressed to get the premium increase back since I don't assume it would necessarily be considered damages (since no one "forced" me to choose Progressive). Just because you say it will help doesn't mean anything. I can tell you that adding exponents when you multiply variables is what you should do, but I haven't increased your understanding of the Math problem now have I? Please do not assume that I know why filing a claim this late in the game would make a difference. If I knew that, I wouldn't be here. djohnson and seniorjudge have actually taken time to comment on my initial questions and give some reasons why. If I can't get this guy to pay for the damage, I'll just go on and deal with a dinged bumper. If I can have it repaired, however, it would be worth it since it's my wife's car and I'd like her to have one that looks new for as long as possible. If I file a claim, have it repaired and then lose in court, I'm out ~$400. If I just lose in court, I'm out $40. Perhaps your idea of "file a claim" and mine are different...?

Now, back to the "case"...

My wife says she got out of the car and heard him say "Just let me know where you want it repaired. Here are my business cards where you can reach me." He then looked at my wife and said "I'm really sorry this happened Ma'am." Of course, I made the major mistake of not assuming the guy was an @$$ and calling the police to file a report, etc. OTOH, closing on the house and moving in was more important (and still is, in the larger picture). My question about her talking to him on the phone related to her ability to testify that he has offered to pay for the damages. My lay assumption is that his admission to pay for the damages to her is a statement of guilt (or at least confirms that he's going to pay for it).

What I'm hearing is that I basically need something in writing saying he's agreed to do so. My retired lawyer friend seemed to think that our 2 statements would carry more weight than his 1 and that the fact that we had business cards would further corroberate our story (I forget the legal term he used). Of course, I'm naively assuming the defendant will tell the truth under oathand and back us up. Then again, if he's not returning our calls... I'm half hoping that a summons to appear in court will either motivate him to pay up or that he'll no-show and we'll "win by default". It looks like we're going to have an uphill battle if he shows up and says "I didn't do it" or whatever else he might be inclined to say.

As for following closely, we were about 6 car lengths (approx 105ft (not 200 yards like I said before)) behind (he was actually ahead in a lane to our right) which is the correct distance for 60mph if I remember driver's ed.

SJ, as for suing for "what dollar damages you have", I assume you mean the estimate? Or do we actually need to get the repairs and THEN sue? not entirely certain what "dollar damages" would mean in a legal sense.

If I am somehow able to speak with him in person (the business he owns is only 2 miles from our house) I've thought about asking to put it in writing. Not sure that it'd happen, but people are usually more agreeable in person (in my experience). If this happened, what kind of statement might you all suggest? I assume I would want him to write it up of his own accord? Or would it be reasonable for me to write a short description of how we understand things (the facts and the agreement) and ask him to sign it? if I were to do so and send it to him through certified mail, would it mean absolutely anything if he never returned it? Is there some legal option that at least entitles me to a "yes or no" reply to said letter? (grasping at straws on that last one, I know, but it never hurts to ask)

Even though it sounds like I'm behind the 8-ball, I also figure SCC isn't more than about $25 here in TX, so it might be worth it. If he were to bring a lawyer I seem to recall that I'm not liable for more than $15 in fees and I can't imagine what on Earth he could countersue for, so I feel I'm safe there. $40 to possibly get $500 in repairs seems like a reaosnable trade-off. Worst case scenario is we lose and I get out with a cheap lesson in how the law works and maybe he won't try to get out of it so easily next time (though I guess if he wins, he knows how to beat the system )

I eagerly await your responses.

PS If I might be allowed one final point of "philosophy"... ENASNI, "senior member" means very little. Everyone needs to be reminded how to act from time-to-time, especially when it comes to a newcomer (I know I do on the cycling forum I frequent). I know plenty of "senior members" in our society who could use a heavy dose of "how to act". The number of posts after your name only means you know how to click on "new message" or "reply", not much else. Whether the advice is useful is not determined so much by the responder as by the OP. A junior member with only 1 post here could be the hottest trial lawyer in town while the guy sitting there with 12,000 posts gets what he knows from watching CourtTV. When it comes to a matter as serious as law, the number of posts means very little IMHO. What matters is "Did you answer my question and does it help inform me" (and are you qualified?). As you must surely know, in law this question is rarely answered in the affirmative by a one sentence answer.

PPS If you want to know the two masters... Religion/Ethics (long story) and Education. Make sense now?

 

[ENASNI]

oh

and when is the Repair of the hood of your car gonna replace War and Peace?

Please tell me.. sheesh get over your vendetta with me or this forum... you messed up and did not follow up up with a stupid guy... why take it on this this forum... You just did not follow up and and feel dumb and have to make yourself look good here... What I say.. If You have all this info ... apologize... help out.. or getlost... or do what others do.. create a fake name... just make the info real... we really care around here... buttcheese if you didn't notice and just flitter around your own posts.... and if so good riddance.

 

[ENASNI]

um

By the way Carl J Stonehead... I would deal with the your situation the same way the same stoneheads your father's did... do not ever... ever... ever... put your name on a public forum you stupid git.

 

[badapple40]

I disagree

The key to OP's problem has little to do with his admission or the oral contract. The judge may believe OP + his wife by a preponderance of the evidence or he/she may not (and he said/she said is why we have judges, to determine who is lying and who is not). But in my mind, that does not matter.

You have proof of damages (estimates). You have this guy stopping following fiberglass falling from his truck. Lets forget about the entire oral contract business for a second. He did not properly secure fiberglass from his truck -- he probably did not have it tied down, he could have been traveling too fast with it in the back of the truck. I'd look at this case from a negligence perspective. He had the duty to properly secure that fiberglass. He breached that duty because the stuff got loose. That actually and proximately caused damage to the Plaintiff's car.

And your wife, you, and probably even he will agree that the fiberglass came from his truck.

Judgment for Plaintiff in the amount of the estimate (but you'll probably need to have the person who gave you the estimate come in and testify -- since you didn't pay it yet, you don't have personal knowledge of the reasonableness of the repairs, and the estimate is likely to be hearsay).