The at-fault party is trying to proof that she was having a seizure...

[Texan]

I was driving on a major road (45 m/h speed limit). The other vechile came out from a minor road (with stop sign at the intersection) trying to make a left turn to join the traffic opposite to my direction. She did not observe the stop sign and the accident happended. Both vehicles were towed.

It looks clear that it was her fault. Her insurance company told me to go ahead to rent a car to keep my life going.

But yesterday, I was told that her insurance is investigating if the other driver was having a seizure at the accident. They have to invesgate her medical history, which will prolong the investigation into weeks before they can finally decide the liability.

I am a Texas resident BTW.

My questions are:
(1) If she was having a seizure when the accident happened, isn't it still her fault for this accident? Shouldn't her insurance still pay for the repair/replace of my vehicle, the rental fee (I do not have rental coverage on my policy ), and the related medical bills?

(2) Should I talk with a lawyer to protect my right or should I wait for her insurance company's conclusion first?

 

[CALIF-LAWPRO-40]

I was driving on a major road (45 m/h speed limit). The other vechile came out from a minor road (with stop sign at the intersection) trying to make a left turn to join the traffic opposite to my direction. She did not observe the stop sign and the accident happended. Both vehicles were towed.

It looks clear that it was her fault. Her insurance company told me to go ahead to rent a car to keep my life going.

But yesterday, I was told that her insurance is investigating if the other driver was having a seizure at the accident. They have to invesgate her medical history, which will prolong the investigation into weeks before they can finally decide the liability.

My questions are:
(1) If she was having a seizure when the accident happened, isn't it still her fault for this accident? Shouldn't her insurance still pay for the repair/replace of my vehicle, the rental fee (I do not have rental coverage on my policy ), and the related medical bills?

(2) Should I talk with a lawyer to protect my right or should I wait for her insurance company's conclusion first?

My response:

Insurance companies are paid to pay for the "negligence" of their insureds. If the other driver had a medical seizure that turns out to be the proximate cause of the accident, then where's the "negligence" on her part?

If a seizure did occur, then you can make your claims against your own policy; e.g., Collision coverage and Med-Pay coverage.

IAAL

 

[xylene]

then where's the "negligence" on her part?

Isn't the risk of having a seizure, losing control, and causing an accident a risk that any known sufferer of seizures takes when they choose to drive anyway? I mean it isn't even a very remote possibility, depending on severity and time spent behind the wheel it is nearly certain.

 

[CALIF-LAWPRO-40]

Isn't the risk of having a seizure, losing control, and causing an accident a risk that any known sufferer of seizures takes when they choose to drive anyway? I mean it isn't even a very remote possibility, depending on severity and time spent behind the wheel it is nearly certain.

My response:

If the State issued her a driver's license, then no. A medical practitioner would have had to have reported the Tortfeasor to the State of California, thus assuring her a denial of a Driver's license.

If our writer wishes to pursue this matter, she'd have to be able to prove that the tortfeasor was knowingly "prone" to seizures. But, obtaining medical records for someone else's medicals is nearly impossible. All the tortfeasor would have to say was, "This is the first time such a thing has happened to me." Case over.

I wouldn't take this case from our writer if the insurance company of the tortfeasor determines that it was, in fact, the seizure that was the proximate cause of the accident.

IAAL

 

[stephenk]

Is there a police report for the accident? If yes, is there any mention by the other driver that she had a seizure?

Were paramedics called to the scene? Was the other driver taken to the hospital? Did you talk to the woman after the incident? Any mention of seizure?

 

[moburkes]

Claims Adjuster

I was driving on a major road (45 m/h speed limit). The other vechile came out from a minor road (with stop sign at the intersection) trying to make a left turn to join the traffic opposite to my direction. She did not observe the stop sign and the accident happended. Both vehicles were towed.

It looks clear that it was her fault. Her insurance company told me to go ahead to rent a car to keep my life going.

But yesterday, I was told that her insurance is investigating if the other driver was having a seizure at the accident. They have to invesgate her medical history, which will prolong the investigation into weeks before they can finally decide the liability.

I am a Texas resident BTW.

My questions are:
(1) If she was having a seizure when the accident happened, isn't it still her fault for this accident? Shouldn't her insurance still pay for the repair/replace of my vehicle, the rental fee (I do not have rental coverage on my policy ), and the related medical bills?

(2) Should I talk with a lawyer to protect my right or should I wait for her insurance company's conclusion first?

I was surprised reading the answers posted. Just surprised, not disagreeing with anyone. I spoke to a claims adjuster. He said that he adjusted a similar situation. He said that he did pay out to the other party, when his customer had previous seizures. His take was that she was driving negligently, knowing that she was prone to seizures. Had this been her first seizure, then he would not have paid out.

FYI: The not-at-fault party (in the above instance) can use her own collision to repair her vehicle. The rental car fee should continue to be picked up by the other insurance company, but I would quickly get on the phone to see when the authorization ends, since they may change their minds, under the new circumstances. The OP can then get a rental from her insurance company, if she has the coverage. OP can collect medical/PIP (whichever your policy has) under her own policy.

 

[You Are Guilty]

The other vechile came out from a minor road (with stop sign at the intersection) trying to make a left turn to join the traffic opposite to my direction.

What evidence made you state this? I find it odd that someone in the midst of a seizure would have the ability to signal and/or begin to make the turn. A point you might want to raise with the adjuster. (Of course, if the seizure occurred "during" the turn, then the driver blew the stop sign before the seizure and is liable).

 

[rmet4nzkx]

Seizures may occur in persons without a history of seizures due to medication and/or withdrawl from medication. I bring this point up in case this is claimed to be a first time event, but there could be other factors to consider that would still qualify as negligence. Also there would have to be medical evidence of the seizure, in which case the entire medical history could become discoverable. We had a similar case here where OP had a first time "seizure" resulting in an accident, possibly caused by unsupervised withdrawl from medication. https://forum.freeadvice.com/showthread.php?t=306795&highlight=seizure

 

[Texan]

Her insurance is investigating her medical history...

These are what her insurance agent told me -

(1) Her parents said she never had seizure before;

(2) Her parents also said that she was not under any medicine;

(3) She went to the hospital with ambulance and does not remember anything about the accident;

(4) Doctor at ER suspects that she had a seizure.

Her insurance is investigating her medical history.

So, if all the statements above are true, she will have no liability for this accident?

It is too bad that I did not step up close to her car to check her situation at the scene. I had my 7-month-old baby in my vehicle and I was scared to death about his situation. But I am pretty sure about two things -

(1) I saw her head moving in her vehicle, and

(2) The police officer was able to obtain her driver's license and insurance information there & then.

I appreciate all the information / recommendation you share with me.

 

[MandyD]

As the mother of someone who used to have many seizures, I can tell you he never knew when he had one. Even his more violent ones left him with no memory. Other times, the only person who knew he was having a seizure was me, his mother. He would look perfectly normal to anyone else, but I could see the difference in his eyes and knew that he seizing at that moment. They don't have to last long either. Most of his lasted under 30 seconds.

 

[Texan]

Is there a police report for the accident? If yes, is there any mention by the other driver that she had a seizure?

Were paramedics called to the scene? Was the other driver taken to the hospital? Did you talk to the woman after the incident? Any mention of seizure?

Yes, there is a police report. There is no mentioning about the seizure in the report. Instead, The report says that she has "NON INCAPACITATING INJURY". And she went to hospital with ambulance. Me and my baby son have no obvious injury excpet bruises and scrach. We did not go to hospital but had our doctors' visit later.

No, I did not talk with that driver since I was taking care of my baby.

 

[rmet4nzkx]

A non impacting unjury can also cause a head injury with amnesia with or without LOC by virtue of whiplash, as can a person who caused an accident but who claims no memory as a defense. If there was no history of a seizure disorder or medications involved and no history of previous head injury which can cause seizures even many years in the future, it is unlikely a seizure caused the accident, that is why her medical history and the evidence such as an EEG will be important. An ER doc can susspect a seizure caused the accident, but that is not proof in and of it's self. But if she did indeed have a seizure out of the blue, then she is not negligent and your insurance would cover your loss. Be sure to check on the rental because her insurance authorized it and can recind.