DennisBeaverApril 27, 2006 (Original publish date) • By Dennis Beaver

When you cause an accident

My daughter was in an auto accident that, according to the police report, was partially her fault. There were serious injuries to occupants of the other vehicle, and I get the feeling that our own insurance company adjusters are doing nothing to protect us. Please, do not get me wrong, if she is partly responsible, we feel that our insurance should compensate those people who were hurt, but we do not want to be sued or exposed to having to pay out of our own pocket. Do you have any suggestions on what we should do to protect ourselves?

Duty of to protect and defend

We buy auto, business or homeowners insurance to protect others from an accident that we might cause, and to also shield ourselves from what could be enormous financial burdens-hospital bills, lost wages and so on. Legally, we speak of an insurance company’s Duty to Defend and Indemnify-the legal duty to protect us. Of course, this implies that claims will be competently and professionally investigated, so that we are not unreasonably exposed to the risk of having to pay out of our own pockets for an accident where we may have been at least partially responsible. It’s one of the reasons we purchase insurance in the first place – so that our personal assets will be protected.

There is no mystery to world of auto claims. Most are handled in a routine manner, with fault initially determined by the claims adjuster after, we hope, a fair and thorough investigation. In simple cases, this may only require looking at a police report and speaking to their insured and perhaps the other side. In more complicated cases, or where injuries are substantial, hiring a private investigator and accident reconstruction expert might be appropriate.

If your adjuster objectively feels you were not at fault, or there are legal defenses to a claim, they must defend you, or attempt to settle the claim within the policy limits so that your personal assets are protected.

But what happens when this process breaks down? What happens when your auto insurance company fails to competently investigate a claim, and creates a very real possibility that you could be hit with a judgment far above the limits of your insurance policy? That what’s facing Annie, a teacher at a large community college in the Southern San Joaquin Valley. While the names and location have been changed, this is a true story.

Me and my skateboard

When her classes begin in the afternoon, Annie occasionally likes to spend a couple of hours shopping for plants at a nursery not far from where she lives. On September 1, 2004, she loaded the plants and related garden items into her car, and was just pulling out of the parking lot, carefully about to turn (right) westbound onto a divided main highway, when suddenly a 34 year skateboard rider smashed into the hood of her car.

The skateboard rider was, by his own admission, going “fast, really going fast, about 20 miles an hour,” against traffic, eastbound in the westbound fog lane, that very narrow strip of highway at the extreme right hand side of the roadway.

At 20 miles per hour, the skateboard rider was covering 30 feet every second, quite literally unseen and unexpected, to a driver looking left, in anticipation of turning right onto a one-way road. While Annie “did, of course, glance to the right, to be sure there were no pedestrians,” she was mainly concerned with west-bound traffic. The nursery is located in a commercial section of town, with no sidewalks and nothing but vacant lots nearby.

On a roll

The skateboard rider wound up with a badly broken leg and over $50,000 in medical bills, paid for by the nice taxpayers of California. According to a witness, “He was doing something with his hands.” That something was, unbelievably “attempting to roll a cigarette!” He saw Annie’s car, but instead of stopping or steering away, “yelled,” but took no evasive action at all.

When asked who was the main cause of this collision, a witness who was traveling westbound and saw it all, blamed the skateboard rider, for going the wrong way, at high speed. “Anyone turning right onto a divided highway would naturally look to the left, to be sure it was safe to enter. With no sidewalks and only a dirt shoulder, no one would ever expect to see someone on a skateboard, traveling in the wrong direction,” commented the witness.

Annie did look in both directions, but had no way of seeing the skateboard rider, due to his high rate of speed plus the fact that the edge of the highway was partially obstructed by a metal fence.

Who is at fault?

Under California law, believe it or not, a skateboard rider is classified as a pedestrian, and this gives greater legal protection when in an accident. However, skateboard riders must still observe the rules of the road, something that did not seem to have happened here.

Let’s say that you are a claims adjuster for Annie’s insurance company. What would you do to thoroughly investigate this accident? The answer is pretty much common sense; You’d send out an investigator, have good photos taken, interview witnesses, do a reconstruction of the accident, and try to accurately show what happened to establish a defense, or at least to show that the skateboard rider was himself greatly to blame.

We don’t investigate. We’re GMAC.

But that’s not what Annie’s insurance company did! Oh, no, not GMAC!

“Well, we did talk with her, and with the man on the skateboard, and we read the police report,” I was told by claims adjuster, Elizabeth Collar. “That’s all?” I asked, in disbelief! “You call that a good job of protecting your insured?”
Not only did has GMAC utterly failed to defend, but they did something even worse. Within weeks of the accident, with no credible investigation, they offered Annie’s $100,000 insurance policy. And, guess what? The skateboarder’s lawyer wants $50,000 out of Annie’s pocket, on top of that!

This case is still unfolding, but if you feel just a little bit scared-wondering if such a thing could happen to you-yes, it can. And for this reason, if you are in an accident and are partially at fault, never, never trust your own insurance company to protect you.

Next week, our recommendations — what you need to do if you cause an accident. Our advice could save you more than worry.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.