Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

[Brian57]

Get an attorney! You will be filing a claim against your own insurance company but don't be put off by that. Also, it doesn't matter what the cop's think or the insurance company thinks. It matters how well your attorney can represent you...either in court or leading up to court. Also, be prepared to sue your insurance company. It's often the only way to get them to pay what is due to you.

It appears you have evidence that the other party was driving with their lights off. That is a good starting point for any attorney. Oh, and don't be dissuaded by what you hear from some folks here. They have a habit of telling everyone they are at fault and have no case.

This is why you have uninsured motorist. Good luck!

[jk]

Get an attorney! You will be filing a claim against your own insurance company!

What does that even mean?

as it stands op would be filing a claim for his own damages with his insurance company, presuming he has collision coverage. If he has collision coverage it’s as simple as filing the claim. I don’t know why he would need an attorney for that.

Op has made no suggestion his insurance company has denied his claim.

[adjusterjack]

What does that even mean?

as it stands op would be filing a claim for his own damages with his insurance company, presuming he has collision coverage. If he has collision coverage it’s as simple as filing the claim. I don’t know why he would need an attorney for that.

Op has made no suggestion his insurance company has denied his claim.

That's right.

The issue appears to be that OP's insurance company will be ruling him at fault so that his policy can be surcharged for the at fault accident.

If OP wants to change that decision he will have to sue the other driver (not his insurance company), prove the other driver at fault, and win the case. That's what he might need a lawyer for.

Count on Brian57 to get so many things wrong on so many different levels.

[cdwjava]

The police report states that I was 100 percent at fault because of the left turn right of way violation. The police report also has numerous errors such as position of vehicle, mechanical condition(they didn't check the lights), no passenger statement(my girlfriend), and no indication of the skids marks. No tickets were issued to either my self or the other party.

I assume that you were cited for VC 21801? Or, that this was indicated as the PCF in the collision report?

While a statement should have been obtained from your passenger, this can be rectified through other means later. She can ask that her statement be included as a supplement to the original report, or you can simply have her attend a DMV hearing when/if you choose to contest the point assigned as a result of your being at fault in the collision.

The indication of skid marks is likewise not required and may not even be relevant other than to show an attempt by the oncoming vehicle to stop and avoid the collision.

The Sheriff did NOT do a FST or check the headlight filaments at the scene.

Neither are required. In most collisions FSTs are NOT automatic, and a check of "filaments" is never done at the scene, and rarely ever at all. Before the officer conducts FSTs he has to have some cause to suspect impairment. No cause, no DUI investigation and thus no FSTs.

They did not question the other driver and she was taken to the hospital.

An interview with the other driver can be conducted later. If a person is to be treated and transported, we tend not to interfere with medics at the scene simply to get a statement.

The other party's family had arrived on scene, and once they arrived on scene one of them was walking around with their phone and told the on-scene officers that "my uncle is an Sheriff and wants to speak with you" Both my girlfriend and I heard this, and thought it was very strange. I do not know what was said.

That can mean anything ... or nothing. The fact that he might be a deputy somewhere would have no bearing on the matter at hand.

My Insurance keeps stating that because I did not come to a complete stop in the center lane and turning left that they would not change the liability. I researched the California Drivers handbook and there is no requirement to stop in the center lane, but to only turn when safe.

You are free to argue with your insurance company and I am certain there is a process by which you can appeal their decision. Keep in mind that they are not bound by the police report's assignation of fault, so they can arrive at their own conclusion. On the face of it, you did make an unsafe left turn into the path of an oncoming vehicle in violation of VC 21801 as evidenced by the collision. An argument that the other vehicle had no lights on thus rendering it invisible is arguable and may well be in dispute. Even if there were no headlights, if the road was lighted, you may have been able to see the oncoming vehicle if you had exercised due care. The lack of lights may be an associated factor in the collision, but as the police report indicated, from the police perspective the primary collision factor was your turning in front of the oncoming vehicle. Your insurer could certainly take a position that the other vehicle shared in some measure of fault should they choose.

I also researched the US DOJ Peace Training guidelines for Peace Officers in California, and it states the following;

https://www.ncjrs.gov/pdffiles1/Digi...47041NCJRS.pdf

The document you link to is a 24 year old document concerning guidelines in place for the Basic Academy. It has no real bearing on the incident other than as a historical curiosity.

A citation for the following should have been issued to the other party;

First off, unless the investigating officer had completed a specific course of instruction, he would be legally incapable of issuing a citation for anything but equipment and insurance. Second, with the driver taken to the hospital, such a citation could not be issued at the scene - though it could be issued later. Third, YOU state that there were no headlights, but that statement alone may not be sufficient to support the allegation in court.

It should also be noted that a citation does not make the report's findings any more or less sound (or, unsound, as the case may be).

As far I understand the above, it seems that a motor vehicle travelling with no lights on the roadway is unlawfully operating and thus has forfeited its right-of-way. Since I was following the rules CVC 21801(b) and safely waited for two vehicle to pass before my turn I was not in violation of 21801(a).

You understand incorrectly.

I sent the above information to the insurance and they still refuse to change liability. The only way they will look into again is if I get a supplemental police report. I am going to the Sheriff station this week to speak with the Watch commander/SGT.

You can seek to add your girlfriend's statement to the report at that time. I seriously doubt you will get them to change the PCF as a result of your research. As it regards the police report, the PCF still lies with you - the lack of lights would be an associated factor. And, even if they DID change the findings for some reason, the insurance company is not at all bound to respect that change.

[Brian57]

Chances are the OP is gone after getting screwed with right out of the gate.

In case anyone hasn't figured out, this site is supposed to be where people in trouble get advice from a defensive standpoint. When they realize they aren't getting that, they leave...as the OP likely did.

Question: Has this site ever had a defense lawyer post here? If so, who? I'd like to read his posts before he got swarmed and run off.

[cdwjava]

It doesn't do any real good to tell him his argument is a good one when he operates under several false assumptions such as that the police MUST do something when there exists no such requirement. Patting him on the back and telling him he's on the right track might do more harm then good.

As was mentioned, he is certainly free to sue the other driver and pay for experts to argue the case for him. However, depending upon the damages, the matter may be in Small Claims Court where he'd have to do it himself.

There is nothing he can do to force his insurance company to change their determination, though there is (I believe) an arbitration process available to him. How likely it might be to alter any determination, I cannot say. As for the police report, the agency is unlikely to change the determination of fault since collision investigation training almost certainly would place the OP with the PCF, even if the other party's headlights were off. The lack of lights might well be an associated factor, but could not be the PCF.

As you pointed out, Brian57, neither of these determinations is binding upon a court of law, but it might take some compelling evidence to prove - even through a preponderance of evidence - that the other vehicle's lights were off, that the vehicle was thus UNABLE to be seen, and contributed towards the crash in some substantial way. Even then, there's no guarantee that the other driver might be assigned even a small portion of the fault.

The site is not a place to assist people to craft defenses or defense arguments, it is a place to discuss the law and posters' experiences and knowledge in specific areas. Patting someone on the back and encouraging erroneous ideas does not do the original poster any good. Some are free to point out fault, and you and others are free to point out things they might try. The original poster can then take the information presented to craft a response they choose - hopefully better informed than they were initially.