I got rear-ended. MUST I go through other driver's insurance to collect for the damages?

[Redemptionman]

I'm about to start preparing my Complaint. Should I include Exhibits with the Complaint at the time of filing, or wait to present them at trial? Or is either acceptable? If so, is one more advantageous? Evidence mainly photos of the street showing the other driver's perspective (his view of the street as he made a left-hand turn into me), and of course the crash photos.

You have the police report? any documentation you have would work.

 

[Zigner]

You have the police report? any documentation you have would work.

The police report is hearsay. Assuming this matter will be heard in small claims, the judge may allow it to be used in the hearing, depending on what it's used for.

Also, are you suggesting that the OP needs to include these "documents" with the filing?

 

[adjusterjack]

Should I include Exhibits with the Complaint at the time of filing, or wait to present them at trial?

Exhibits get presented at trial along with your testimony.

Evidence mainly photos of the street showing the other driver's perspective (his view of the street as he made a left-hand turn into me),

That's not evidence of anything the driver did. It's only evidence of what the street looks like when nothing is happening. Present it if you like, but it isn't likely to help you.

of course the crash photos

The position of the damage on the vehicles might give a hint to how the accident happened.

My question is, if I were to cash the check, would that preclude me from being able to sue the driver for the remainder? Would cashing the check (a paltry $2100) be legally tantamount to accepting it as a final settlement, or would I still have the option to sue for the rest?

Send the check back with a letter declining the offer and attach a copy of your completed (but unfiled complaint) along with your estimate. Then see what the response is.

Just holding on to the check without cashing it can be construed as accepting the money. That you might not want to send the check back for fear of not getting it again implies that you have accepted it whether you cash it or not.

 

[Zigner]

I'm about to start preparing my Complaint. Should I include Exhibits with the Complaint at the time of filing, or wait to present them at trial? Or is either acceptable? If so, is one more advantageous? Evidence mainly photos of the street showing the other driver's perspective (his view of the street as he made a left-hand turn into me), and of course the crash photos.

Review this site: Small Claims - small_claims_selfhelp

 

[Redemptionman]

The police report is hearsay. Assuming this matter will be heard in small claims, the judge may allow it to be used in the hearing, depending on what it's used for.

Also, are you suggesting that the OP needs to include these "documents" with the filing?

He can use the photos and the accident scene reconstruction along with the police officer testimony if the officer gave his determination on fault. No, but it is a good trial tool or good to use as a negotiation tool for settlement.

Use the photos and diagrams if they have them and most accident reports do these days.

 

[Zigner]

He can use the photos and the accident scene reconstruction along with the police officer testimony if the officer gave his determination on fault. No, but it is a good trial tool or good to use as a negotiation tool for settlement.

Use the photos and diagrams if they have them and most accident reports do these days.

Generally, accident reports don't have photos. The police officer is not going to be there to testify unless subpoenaed. The report is hearsay and any determination of "fault" in the report will not be considered without the officer being present to testify at the hearing. Even the diagrams could be problematic under the hearsay rule. Having said that, I will acknowledge again that in small claims court, this way of using the report is more likely to be allowed than it would be in a higher court. It can't hurt to try to enter it in to evidence, but the person entering it in to evidence had better have some applicable exceptions to the hearsay rule handy, just in case they're needed.

 

[adjusterjack]

along with the police officer testimony if the officer gave his determination on fault.

The officer did not witness the accident. His testimony and his report are potentially inadmissible as hearsay. He can only testify as to what he saw when he arrived and if the cars were moved to the side after impact his testimony would be useless.

Plaintiff would need a qualified accident reconstruction expert which is likely to cost more than $1000 for an evaluation, report, and court appearance.

 

[Redemptionman]

Generally, accident reports don't have photos. The police officer is not going to be there to testify unless subpoenaed. The report is hearsay and any determination of "fault" in the report will not be considered without the officer being present to testify at the hearing. Even the diagrams could be problematic under the hearsay rule. Having said that, I will acknowledge again that in small claims court, this way of using the report is more likely to be allowed than it would be in a higher court. It can't hurt to try to enter it in to evidence, but the person entering it in to evidence had better have some applicable exceptions to the hearsay rule handy, just in case they're needed.

Most all police departments especially ones in CA use programs to build the police report. They should have photos and diagrams but each department is different. Only OP knows if they took them, and the police report is govern by here say rule but that can be over come by witnesses, photographs, and diagrams. CA uses a pure comparative negligence to tort cases, so what ever percent at fault each party is will govern how much they can recover.

I am not a real big fan of tort reform, as it limits the ability for plaintiffs to collect all their damages.

 

[adjusterjack]

I am not a real big fan of tort reform, as it limits the ability for plaintiffs to collect all their damages.

Not all. Tort reform seeks to put a cap only on outrageous pain and suffering awards.

And some states limit the types of injuries for which pain and suffering damages are allowed.

 

[Redemptionman]

Not all. Tort reform seeks to put a cap only on outrageous pain and suffering awards.

And some states limit the types of injuries for which pain and suffering damages are allowed.

Yep, making irresponsible drivers less responsible for their actions and protecting insurance companies more. Yeah, of course I am of the opinion as well that insurance companies should not be publicly traded as it puts their inventors/ shareholders over their policy owners. Anytime this is allowed to go on it creates a conflict as to what an insurance companies obligation is which should be to their insured, first. I get that it keeps rates low but you shouldn't put investors over insureds hence the increase in BAD FAITH awards.

 

[Zigner]

Most all police departments especially ones in CA use programs to build the police report. They should have photos and diagrams but each department is different.

You do understand that I am in California, right? You do understand that I have personal knowledge of this matter, right? I'm not going to disagree that such things are in use in some departments, but I do take exception to your "most all" quantification without citation. In any case, it's really irrelevant for the OP, as all that (possibly) matters is what is contained in the report generated by the officer at the scene of the OP's accident.

Only OP knows if they took them,

I agree with this. Nobody in this thread but the OP would know.

and the police report is govern by here say rule but that can be over come by witnesses, photographs, and diagrams.

That's not "overcoming" it, that's simply replacing it. (Also, it's "hearsay", not "here say".)

CA uses a pure comparative negligence to tort cases, so what ever percent at fault each party is will govern how much they can recover.

That's true, but not complete. The OP is trying to accomplish two things here. First, the OP is trying to get the court to determine that the other party is 100% at fault, thus 100% responsible for the damage to the OP's vehicle. Second, however, is that the OP is trying to get the court to determine what the actual damages are to his vehicle. The OP will present evidence, as will the other party, and the court will then make that determination based on that evidence.

I am not a real big fan of tort reform, as it limits the ability for plaintiffs to collect all their damages.

Not at all relevant to the OP's matter...but ok, I suppose.

 

[Redemptionman]

If he was stopped as the OP stated then he should be able to get 100 percent determination to the at fault party. OP is also over looking Diminished Value or any other damages to which they may be entitled.

 

[Tax Counsel]

I'm about to start preparing my Complaint. Should I include Exhibits with the Complaint at the time of filing, or wait to present them at trial?

You don't attach planned exhibits like photos to the complaint. I assume that you are suing in small claims court, in which case just fill out the California small claims complaint form to file with the court and have served on the other party. The Department of Consumer Affairs publishes a pretty detailed small claims court guide. That should answer most of your how to type questions.

 

[Zigner]

I'm about to start preparing my Complaint. Should I include Exhibits with the Complaint at the time of filing, or wait to present them at trial? Or is either acceptable? If so, is one more advantageous? Evidence mainly photos of the street showing the other driver's perspective (his view of the street as he made a left-hand turn into me), and of course the crash photos.

Hang on a second. In post 17, you said the driver made a RIGHT turn and then hit you. Why has your story changed? Is it possible that you really don't know where the car came from?

I was turned around looking through my rear window when suddenly this car comes barreling out of the alley making a right-hand turn and SLAMS into me.

 

[Zigner]

If he was stopped as the OP stated then he should be able to get 100 percent determination to the at fault party.

It's never that cut and dry. If the OP was backing in to the path of the other driver, then managed to stop at the last second, then the OP would still be at fault. Possibly (probably) not 100% at fault, since the other driver may also have had an opportunity to avoid the collision.

OP is also over looking Diminished Value

What evidence does the OP have at this time of the amount of any diminished value on his 20 year old, $8000 car?

or any other damages to which they may be entitled.

That is vague enough that I'll just leave it at "sure".

 

[Brian777]

You have the police report? any documentation you have would work.

I do, I have the police report, the DMV accident report...I have everything.

 

[Brian777]

Hang on a second. In post 17, you said the driver made a RIGHT turn and then hit you. Why has your story changed? Is it possible that you really don't know where the car came from?

That was definitely a typo, the other driver made a left-hand turn into me. My mistake.

 

[Brian777]

You don't attach planned exhibits like photos to the complaint. I assume that you are suing in small claims court, in which case just fill out the California small claims complaint form to file with the court and have served on the other party. The Department of Consumer Affairs publishes a pretty detailed small claims court guide. That should answer most of your how to type questions.

I scanned through it and it mentions mediation, so I'm wondering if that might be a better option to try first. I wouldn't bank on it in this matter but it might be worth a shot. The insurance company offered a measly 25% of the damages I'll be seeking, so they would have quite a long way to go before I'd consider settling.

 

[Brian777]

It's never that cut and dry. If the OP was backing in to the path of the other driver, then managed to stop at the last second, then the OP would still be at fault. Possibly (probably) not 100% at fault, since the other driver may also have had an opportunity to avoid the collision. What evidence does the OP have at this time of the amount of any diminished value on his 20 year old, $8000 car?
That is vague enough that I'll just leave it at "sure".

Everything that I've read & researched having to do with legal responsibility in car accidents points to the other driver being at fault. He was: a) making a left-hand turn from an alley onto an active roadway, b) failed to yield to traffic already on the roadway (me), c) was traveling at a high rate of speed (I believe) when he slammed into me, and d) I'd been stopped for a count of about "one one-thousand" before he hit me, which in my opinion would be PLENTY of time for any driver paying attention to have avoided driving into a large object directly in front of them on a residential street when making a turn.

But more to the point of my case, even if I hadn't been stopped, the view from where he was turning is so wide open, so unobstructed and clear that had he even glanced to his left before commencing a turn, he definitely would have seen me. I made that turn almost every day when I lived at that building (it was the alley behind our apartment building, we lived in the same building, though I've since moved). One would really have to be completely not paying any attention at all to drive into another car when making that turn.

 

[Brian777]

If the OP was backing in to the path of the other driver...

That's a central question of this case though I believe, who was in whose path, or rather who had the burden & responsibility to do what? I recently read through, in detail, the DMV's "Rules of the Road" section that deals precisely with this exact type of scenario, a driver making a left-hand turn from an alley (or non-roadway) onto a street/active roadway. It states that even if there is no "Yield" sign (for the driver making the turn), that driver still bears the responsibility to yield to cars already on the active roadway.

So it really could come down to "brass tacks" here, or require some very specific determination by a judge; for instance, does the fact that I was in reverse (attempting to back into a parking spot) in any way alter the other driver's responsibility to make sure the path for his intended path of travel was clear before commencing the turn?