“I was going straight at an intersection when a car suddenly turned left in front of me, damaging my car. The police came and made out a report saying I was going straight. But the insurance company for the driver making a left turn does not want to pay to fix my car. They claimed “comparative negligence” against me. Can the insurance company do this?”
The short answer is yes.
The insurance company is only obligated to make a reasonable attempt to settle a claim. This means that the insurance company can use every legal defense available to the driver they insure.
In New York, we live in a state that is governed by “comparative negligence.” This means that the insurance company only has to pay for the damage for which their insured is legally obligated to pay. If their insured is 100% responsible for the accident, then the insurance company must pay for 100% of the damage. If their insured is 50% responsible for the accident, then the insurance company will only pay for half of the damage. CPLR 1411. In the case of left turn, a driver going straight has the right of way. NY Vehicle and Traffic Law section 1141. But the driver going straight also has an obligation to see what there is to be seen. The driver going straight may be partially at fault. So there are factors which could give the insurance company a reason to offer to pay less than 100% for the damage.
Collision Coverage
If you have a collision endorsement on your own car, we always advise clients to put the property damage claim through your collision endorsement. A collision endorsement usually has a deductible. But by using your collision endorsement, you allow your insurance company to fight the other insurance company on your behalf. If your insurance company is successful fighting the other insurance company, you could get back your entire deductible. Furthermore, your insurance company is in a much better position to fight an insurance company than you are. If you fought this claim yourself, you would have to file a summons in court and be your own lawyer against an insurance company lawyer. This would not be a fair fight.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.