Being the victim of another driver's negligent driving is always bad. However, when that collision occurs during wintertime conditions, bringing the claim against the at-fault driver's insurance may become difficult, if not impossible. This article will detail the additional concerns with respect to winter car accidents, discuss the common nuances associated with these complicated claims, and suggest some simple ways to address these issues in your own life should they occur.
A. THE NORMAL SCENARIO:
In order for any Plaintiff to get reimbursed for their property damage, medical bills, and personal injury, they have to be able to show with facts and hard evidence that the Defendant is at fault for those damages.
In your garden variety rear-end car accident this is usually straightforward because there will be a police report that will suffice as proof. When the police respond to an accident, they often will obtain witness statements. Even better, the at-fault driver usually owns up to being at fault at the scene in front of the police, and the report will document that admission with something along the lines of "Driver 1 admits to being distracted just prior to colliding with the rear of Driver 2." Case CLOSED! Your car is going to get fixed, your personal injuries should be compensated, and your medical bills will be reimbursed (if they are reasonable and necessary--and people still somtimes hire us when the insurance company fights them on this issue). Why? Because if the insurance company doesn't agree to take care of these matters for you, they know you will hire us, and we will beat it out of them in court with evidence and witnesses.
The real issue for this article is what happens when there is less available proof and evidence is more uncertain, or even nonexistent. Under these circumstances, you can count on the insurance company to dig their heels in and say, "You can't prove our guy is at fault, so, we aren't paying."
B. THE WINTER ACCIDENT PROBLEM:
A slew of complications can arise when an accident occurs during
wintertime conditions. Often, the police are on "accident alert" and
won't come to the scene unless the vehicle has flipped, someone is
bleeding to death, or it looks like someone is drunk. Road conditions
are terrible so it's likely that there are tons of other crashes all
around. Witnesses tend to not hang around, because it's cold and they
want to get home. Little, if any, proper documents are exchanged at the
scene that implicate the at-fault driver.
For instance, say a driver on a snowy night slides through a red light and t-bones your car. You pull over and dutifully call 911. You're told that the police are on "accident alert" and that you should simply exchange information unless a driver is drunk or injuries require an ambulance, and instead, file a counter report within 72 hours. The at-fault driver apologizes several times to you as he hands you his insurance information. You, of course, figure that proving that the other driver is at fault is easy so you take down his information and you both head your separate ways.
With that background, how likely do you think it is that his insurance company will accept and pay this claim? The answer is: not very. In fact, under this scenario, the only chance you have is if the driver himself admits to his insurance company when they contact him that he was at fault. Believe it or not, that rarely happens. Short of that confession, rest assured the claim will be denied.
C. THE SOLUTION:
First, never let an at-fault driver leave the scene of an accident where police are not investigating without providing you a written, dated, and signed statement admitting fault for this collision. Afraid that will be hard to get? Wrong, it's easy. But, it does require you to do just a little bit of a sales job.
Next, keep a camera, even a cheap box camera, paper, and pens in your car, along with, of course, your insurance card and registration. When you know the conditions are snowy or icy and you feel it's likely to be an "accident alert" day, don't waste your precious time on the side of the road trying to secure police involvement. Instead, go up to the driver and tell him, "Look, if I call the police, they will come out and give you a ticket." It's a true statement (if they arrive on the scene at all). Tell the driver, "The police are backlogged tonight, and it will likely take them hours to get here." Also a true statement. Go on by saying, "Provided you can produce to me current insurance information and a valid driver's license, I am willing to not wait for the police if you will just write me one sentence and sign it."
The one sentence is: "On ______date, at ______time, on _______ road, near _______ intersection, I, (his/her name), was at fault for causing a collision with a vehicle driven by (your name)."
Think that driver will want to test your patience and resolve by waiting to see if police arrive? No way! He will start writing what you tell him to before you get the entire sentence out of your mouth. While he's doing that, you get your camera and start photographing your car damage, his car damage, maybe an incidental photo of the other driver, still writing out the sentence, his license plate, and of course, take a snap shot of the insurance and license he has already freely handed you. BAM!! You've got your hard evidence.
D. THE RESULTS:
When you contact the at-fault driver's insurance company, make sure
they know that in addition to telling them that you possess fresh
vehicle damage photos, that you also have his written admission of
fault. Miraculously, you will notice a complete change in the claims
adjuster's voice. Your claim will be accepted, and without question, the
adjuster will shortly thereafter begin talking to you about securing
you a rental car and your vehicle repairs will be paid for by them.
I have been instructing people to handle these wintertime crash situations like this for nearly 20 years. Following these simple instructions has worked like a charm on almost every occasion.
At Anderson, Hemmat & McQuinn we hope you don't experience an accident this winter. But if you do, we want you to be prepared to protect your rights. Please call and speak with one of our attorneys today if you have questions about your winter car accident.