Category: Insurance Disclaimers

Insurance Disclaimers, Motor Vehicle Accidents, Pedestrian Knockdown

Pedestrian Knockdown

When I was driving, a person stepped out onto the roadway and I struck him. I never saw the pedestrian because he unexpectedly began walking from the sidewalk onto the road. What should I do?

I assume you already spoke to police at the accident scene. The first thing you should do is contact your insurance company immediately. The insurance premiums you pay provide that your insurance carrier will defend and indemnify you for accidents. That means that your insurance company will hire attorneys to represent you in any negligence case that is brought. Your insurance company will also be responsible to pay for damages up to the amount of your insurance policy limits. If you have a separate umbrella policy, you should notify that carrier as well of the accident. As long as you notify your insurance company about an accident in a timely fashion you should be protected.

Since you were vague about your description of the accident, there are a few issues about which you should probably be aware. These legal points all are centered on the Vehicle and Traffic Law. Some of these laws may seem contradictory, but once you can get a clear picture of the facts, there will be no contradictions.

Was the pedestrian in a crosswalk at the time of the accident? Vehicle and Traffic Law § 110 defines crosswalk. Not only are painted lines across the road considered a crosswalk, but there are “unmarked” crosswalks. At the end of a block, there are “imaginary” lines that connect the “lateral lines” of sidewalks on each side of a roadway. Those “imaginary” lines are a cross walk and the pedestrian has the right of way.

If your accident occurred where there were no traffic signals, Vehicle and Traffic Law § 1151(a) apply. Pedestrians have the right of way in crosswalks (marked or unmarked). But pedestrians must yield the right of way to cars if they are crossing in an area that has no crosswalk, under Vehicle and Traffic Law § 1152.

There are also “common law” duties, meaning that there is no statute defining this duty, but judicial decisions over the course of decades have imposed duties on motorists. One common law duty is to “see what there is to be seen.” So even if a pedestrian is in the road, not at a crosswalk and in an area without traffic controls, the driver still could be liable. Thus, in the question when you mentioned “I never saw the pedestrian.” Do you mean that you never saw the pedestrian at all or you never saw the pedestrian until it was too late to avoid the accident? The last issue will probably be huge in determining accident responsibility.

Damages in Personal Injury Cases, Insurance Disclaimers, Motor Vehicle Accidents

Impaired Drivers

I was injured in a car accident. The other driver looked like she was drunk or impaired in some way. Will my case be affected by the other driver’s condition?

There are two ways the other driver’s condition may affect your case. A person who drives a car in an impaired state is held to the same standard of care as a sober driver. Furthermore, if the driver took a breathalyzer test, the results of that test would be admissible at trial. Vehicle and Traffic Law § 1192 lists categories of impairment based on the amount of alcohol in a person’s body and the jury would be aware of the test results and the categories of impairment. If the impaired driver refuses to take a breathalyzer test at the scene, that fact a driver refused to take a breathalyzer test at the scene of an accident would also be admissible at trial under Vehicle and Traffic Law § 1194. So a jury would be aware of all the circumstances of the accident and would be instructed to judge the standard of care of the impaired driver as if the driver were sober.

The second affect on your case may be less helpful. Most auto insurance policies have a clause which gives insurance companies the right to disclaim coverage for an impaired driver. If the insurance carrier for the other vehicle disclaims coverage, it may be in your interest to legally fight that disclaimer. If you lose that fight with the impaired driver’s insurance company, you would have the right to bring a claim against your own insurance policy for an uninsured motorist claim. Every auto insurance policy must provide benefits for a driver involved in an uninsured accident. This means if the carrier for the impaired driver successfully disclaims coverage, you could pursue a bodily injury against your own carrier for an uninsured motorist claim.

Accident Cases in Court, Insurance Disclaimers, Motor Vehicle Accidents

Insurance Disclaimers

I was involved in an accident in which my car was damaged but no-one was hurt. I received a letter from the other driver’s insurance carrier saying that the insurance carrier was not covering the loss. There was a bunch of legal jargon I didn’t understand in the letter. Does this mean my car won’t be fixed?

I would suggest that it is probably too early to tell if your car will get fixed and paid for by insurance. There are a number of issues involved with a letter of disclaimer.

An insurance company will send a letter of disclaimer if it believes that it is not responsible to pay for the loss. The usual reasons that an insurance company will not pay for a loss is (1) the insured did not pay his premium, (2) vehicle was being used without the owner’s permission (such as a stolen vehicle), or (3) the owner of the car or someone who had the owner’s permission to use the vehicle was driving while intoxicated and caused an accident. There are some times in which the insurance company will be liable even if one of those three circumstances occurred.

For example, just because the insured did not pay his premium does not mean automatically that the loss will not be covered. Under New York law, a carrier has to send a notice to the insured that the policy is canceled. The carrier has the responsibility to send the notice of cancellation with certain language and in a certain font size! If the insurance carrier does not follow the exact letter of the law, the policy is in effect.

Second, the insurance company might be liable if the vehicle was being used by another licensed driver living in the same household as the insured. It would all depend upon circumstances in the home of the insured. For example, did the insured leave keys to the vehicle in a common area in the home about which all licensed drivers in the home knew the key’s location? Prior to the accident, did the insured lend his or her car to the same person that was driving at the time of the accident? These factors would be very important to determine the liability of the insurance company.

Third, even though the insurance company may have been given a statement by a witness that their insured was drunk, the insurance company still may not be able to disclaim. If the police were not at the scene of the accident or the alleged drunk driver was never tested with a breathalyzer or blood test, the insurance company may still have to pay on the claim.

In most instances, we advise our clients to put property damage claims through their own insurance company through a “collision endorsement” in their own policy. Even though a person may not want to put a claim through their own insurance company for an accident that was not their fault, your own insurance company has the resources to fight the other insurance company. If you have a $1,000 deductible in your auto insurance policy “collision endorsement,” after the first $1,000, your own insurance company will pay to fix your car. Then your insurance company has a right of subrogation.

A right of subrogation means that your own insurance company will fight with the other insurance company to get back money your insurance company paid to fix your car, as well as your $1,000 deductible.

If you have no “collision endorsement” in your insurance policy, you can take the driver and owner of the vehicle that caused the accident to small claims court. I would also advise you to file a complaint with the insurance department to investigate the validity of the disclaimer.