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Caddyman

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I believe Virginia does not use the so-called “no fault” standard in automobile accident cases. Rather, liability is determined by the circumstances of the accident, and which party is at “fault.” Who was at fault is a matter of deciding who was “negligent.” Courts will look at a number of factors to determine who was “negligent”:

- disobeying traffic laws (speeding; failure to use signals, etc.)

- disregard for weather conditions

- driving under the influence of alcohol

- intentional or reckless conduct

First, the argument regarding her bald tires begs the question as to why you also lost control of your vehicle? Did your car also have bald tires? If you were following at a safe distance and your vehicle was properly equipped then you should have been able to avoid the collision? Yes? Well, maybe not.

From what you have said your vehicle was properly equipped under Virginia law. Further, you did not loose control of your vehicle until you had to take drastic action to avoid the collision. On the other had, the other driver’s vehicle was not properly equipped and she failed take cognizance of this fact.

In New Jersey there is a published case entitled Beruk v. Wilson, et al. (NJ Supreme Court) which states that the driver of vehicle 1 need not anticipate that the driver of vehicle 2 is going to loose control of his vehicle and enter into the path of vehicle 1. In other words, if a driver loses control rounding a corner on a rainy day and crosses the median into the path of an oncoming vehicle, then the driver who lost control will be deemed at fault.

In your case, you could argue that when the driver lost control of her vehicle and blocked the second lane, which was your only way to avoid the accident, she illegally entered into your path. In fact, it was illegal for her to block the second lane. You could also argue that you had a right to the use of the second lane in order to avoid the accident and to protect your property. I note that you did not rear-end the vehicle, rather you struck the passenger door at a 90-degree angle, indicating the vehicle was blocking both lanes. Moreover, because the vehicle blocked both lanes you did not have a “last clear chance” to avoid the collision. The doctrine of “last clear chance” means that a defendant had a clear chance to avoid injury to the plaintiff but negligently failed to do so.

Therefore, it could be argued that the “proximate cause” of the collision was the driver losing control of her vehicle and blocking your only means to avoid the accident. Bear in mind that there could be more than one proximate cause of an accident caused by more than one individual or event. This could lead to a determination that there was “contributory negligence”, which is an affirmative defense to an automobile accident.

Further, to say that following at a so-called safe distance according to whatever acceptable standard applies always equates to having the ability to avoid an accident is misplaced. I agree with tjtjwad’s analysis that it is arguable that you were travelling at a reasonably safe distance behind the vehicle. It appears the key questions under Virginia law are whether you were negligent, and whether such negligence contributed to the accident. I’m not convinced that you were totally negligent. I believe that a reasonable person could conclude that 2-3 car lengths behind a vehicle traveling between 7-10 miles is a reasonable distance even in rainy conditions. In other words, you were not negligent per se (by means of itself or by the mere fact).

Also, tjtjwad raises an interesting point regarding the accident at the PA/OH boarder the other day when he said: “With that rational did everyone involved in the pile up on I80 in PA a few days ago get charged ... because these folks obviously wern't (sic) in control of their vehicles.” Correct me if I’m wrong but according the rational of many who responded here, the driver of the vehicle that first struck the truck should be held liable because colliding with the truck proves negligence? And the truck driver is totally innocent?

The standard of proof in automobile accident cases is called the “preponderance of the evidence” standard. This standard is defined to mean the more persuasive evidence or the evidence which is more likely than not to be true/accurate as to what happened on an issue. The bottom line is that while some are of the opinion that this matter is an open and shut case, the fact is it may not be.

Finally, the laws and standards of the jurisdiction in which the accident occurred will almost always be used to determine “fault”, not necessarily by some ridged standard.

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Well I just learned something.

I took MAC's explanation to another insurance adjuster that I know (not married to this one…he is a lot older and a lot less attractive) and holly cow MAC is right!

In my Province (which is also not no-fault by the way.. ie. Tort...) if the vehicle you are about to plow into blocks both lanes and you have no exit you have a fighting chance when it come to determining liability. His advice is that having a witness that can back up that you were following a safe distance is also a good plan too.

He also shared with me that if its icy a good adjuster will take all kinds of information into consideration like the condition of the other drivers tires!

If I were you I would print off MACs post and take it with you when you meet with your adjuster.

Some hopeful news!

Happy Holidays

caddy.jpg

Easin' down the highway in a new Cadillac,

I had a fine fox in front, I had three more in the back

ZZTOP, I'm Bad I'm Nationwide

Greg

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Mac;

Thanks for making my point. I'm neither a litigater nor a legislator but I was having visual images what was described and while I don't feel he is of the hook completely his case does have merit.

In as far as Virginia laws ( I used to be stationed there back in the late 1970's) I remember once that myself (the passenger) and another acquaintance were out driving on a … uhhh pub tour. He and I were by today’s standards (heck ... maybe the standards at that time) "under the influence.” Any way, we were involved in a fender bender when the driver I was with side swiped another car.

The other car (the one side swiped by us) did not have any insurance ... apparently a big no-no in Virginia at the time.

Who was at fault? Surprisingly, the person without the insurance was charged with the accident because he wasn't suppose to be out there to begin with (straight from the officers lips). Sounds bizarre, but it happened. As a side note in the state of North Carolina if your insurance lasped and the grace period was exceeded you had a given amount of time to turn in the tags to your car or a warrent was issued. This also occured during the 1970's. Can't say it is like that now.

What I don't know if it was challenged in traffic court or what have you, but the driver I was with (and I) left the scene without a citation.

Jim

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Hey Greg,

Give this one to Nicholls. My money says he wins. LOL

Rick

2001 STS Mettalic Otter Grey, Black Leather, 213,000 kilometers - miles - ? Still running strong!

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well her insurance is not going to claim against me for her damages, but is trying to play the 1% responsible game. My insurance is going to take it to arbitration.

so it looks as if I might be ok, in the long run, but it will all take some time. My insurance adjuster said and agreed that the proximate cause of the accicdent was her losing control, and her negligence.

once again thatnks for ALL of our inputs.

alex

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Mac;

Thanks for making my point. I'm neither a litigater nor a legislator but I was having visual images what was described and while I don't feel he is of the hook completely his case does have merit.

In as far as Virginia laws ( I used to be stationed there back in the late 1970's) I remember once that myself (the passenger) and another acquaintance were out driving on a … uhhh pub tour. He and I were by today’s standards (heck ... maybe the standards at that time) "under the influence.” Any way, we were involved in a fender bender when the driver I was with side swiped another car.

The other car (the one side swiped by us) did not have any insurance ... apparently a big no-no in Virginia at the time.

Who was at fault? Surprisingly, the person without the insurance was charged with the accident because he wasn't suppose to be out there to begin with (straight from the officers lips). Sounds bizarre, but it happened. As a side note in the state of North Carolina if your insurance lasped and the grace period was exceeded you had a given amount of time to turn in the tags to your car or a warrent was issued. This also occured during the 1970's. Can't say it is like that now.

What I don't know if it was challenged in traffic court or what have you, but the driver I was with (and I) left the scene without a citation.

Jim

A cop who does something like that in New Jersey or New York would have a big problem on his/her hands.

You write up an accident report based on the accident ONLY. You write a summons to appear in court against the person who cannot prove they had insurance at the time of the accident. The person receiving the summons has to appear in court and PROVE at the time of the accident, they have insurance or if not, their license is suspended right then and there.

We also have "no proper paperwork" tickets in New Jersey which are hefty fines you have to pay for not having your registration, insurance or driver's license on your person or in your vehicle at the time you are stopped whether for a traffic stop or accident, or whatever. Even if you later show up in court with your documents, you still have to pay the fine because the ticket is written based on the fact that you didn't have your documents with you at the time you were stopped.

Putting someone at fault in an accident simply because they didn't have an insurance card in their possession is wrong. You write the report based on the accident, you write tickets based on who is missing documents.

If you really want to make people safe drivers again then simply remove all the safety features from cars. No more seat belts, ABS brakes, traction control, air bags or stability control. No more anything. You'll see how quickly people will slow down and once again learn to drive like "normal" humans.

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I understand what you're saying but the fact remains, not having insurance does not automatically put you at fault in an accident. That cop was wrong for doing that. An accident report should only be based on the facts of the accident and nothing else. Altering an accident report is a no-no.

If you really want to make people safe drivers again then simply remove all the safety features from cars. No more seat belts, ABS brakes, traction control, air bags or stability control. No more anything. You'll see how quickly people will slow down and once again learn to drive like "normal" humans.

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Marika,

One could argue your point. When it is illegal to operate a motor vehicle on public streets and highways without automobile insurance (with the minimum rates) per the state statue, then one should not be operating a vehicle at all … period. Therefore, because this individual chose to break the law it is quite conceivable to charge this person with the accident because had they been obeying the law they wouldn’t of been where they were … behind the wheel of an automobile without insurance.

As far as our instance, we were the only two cars on this particular street at the time (very early in the morning). Irregardless, this wasn’t a huge accident. It was one drifting over the centerline of a 4 lane highway with a median. I know of no accident report altering on the officers part. The facts were all in the report.

As an after thought; when one chooses to intentionally break the law, one has to accept the consequences of their actions. Fortunately, in this case no one was hurt except for car doors, fenders and quarter panels and maybe this person’s wallet and future insurance rates.

Jim

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I disagree with the majority, as usual.

You are obligated to choose a following distance that allows you to react to the normal or even rather quick stopping of the car ahead of you.

You are not obligated to allow enough distance so that you have to stop for a non-moving object, which, in effect, is what the lady's car became when it went sideways. It is no longer moving straight ahead in a braking mode -- slowing down - - rather, the car rather suddenly goes to almost a zero speed in forward movement - because it is sideways - and you can't be held to foresee that.

There's appelate cases in California on this point, and you win!

If they try to hold you up, go to a law library, and ask for the librarian's help in finding cases in your state.

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There's appelate cases in California on this point, and you win!

Only in California could you actually be the victor in a lawsuit you bring against someone else because YOU were tailgating them. :rolleyes:

Jason(2001 STS, White Diamond)

"When you turn your car on...does it return the favor?"

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I believe that in my state, a vehicle without insurance should not be on the road and that the operator of that vehicle can, therefore, be held legally responsible for any accident, regardless of the circumstances. Conversely, expectations are that all drivers engage in defensive driving and accident avoidance. It can be argued in this case that these two statutory provisions set up a contradiction, therefore requiring both parties to be declared equally at fault; but in most cases, the overriding self-interest of the party making the argument that they were hit in the rear and therefore are not at fault would be dismissed due to the lack of insurance issue. No attorney will be able to adequately reconcile the deflection of blame for the operation of a vehicle that should never have been on the road in the first place.

This position, taken by the courts in much case law, presupposes that, had the uninsured vehicle not been on the road as required by law, that the accident would not have occurred. A variation of this argument could be used in the case of a driver - insured or not - operating an unsafe vehicle due to the bald tires resulting directly in an unexpected loss of vehicle control (maintaining control of a vehicle is required under most, if not all, states' motor vehicle code). That same vehicle would then be subject to discovery for all other essential safety items - including condition of brakes, correct operation of all exterior vehicle lighting, steering, suspension, etc. - the idea being to establish a pattern of irresponsibility on the part of the vehicle owner. The success of this argument would depend on how rigidly the state in question enforces this section of its motor vehicle safety laws (States that require vehicle safety inspections are generally more likely to go hard on someone who does not comply).

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