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  1. #1
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    Default Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    My question involves insurance law for the state of: CA

    In April I was hit by an un-insured motorist travelling with no lights on in the city of Lancaster, CA. I have un-insured motorist coverage on my policy.

    Details of the road are; 5 lanes with two northbound lanes, 2 southbound lanes and a center turn lane. Conditions were dry and clear with zero to little moonlight and streetlights. Time of the incident was at 10:00 PM PST.

    I was returning a 6x12 enclosed trailer to a U-haul business with my Chevrolet Tahoe. All lights were on and vehicles is in excellent mechanical condition. I was travelling Northbound and upon approaching the driveway to the business, using my left turn signal I changed lanes into the center turn lane. I saw two vehicles travelling southbound with headlight and parking lights on. After the second vehicle passed I determined it was clear a proceeded to make a left turn into the drive way of U-haul. Upon the front of my vehicle entering the number 2 southbound lane I was struck by a Honda Civic(burgundy) with no headlights. My girlfriend or I did not see the vehicle travelling southbound until we were struck. Luckily my truck took the hit and we were not injured. I took photos of the scene and was able to obtain the video surveillance footage of the accident from U-haul showing the vehicles travelling with no lights. The photos show skid marks, positions of the vehicles, and the status of lights on both vehicles.

    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.

    The Sheriff did NOT do a FST or check the headlight filaments at the scene. They did not question the other driver and she was taken to the hospital. 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.

    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.

    https://www.dmv.ca.gov/portal/dmv/de.../traffic_lanes

    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

    2. Lawful Operation Required

    Before the driver of any vehicle is entitled to the right-of-way, st'ch driver himself must be operating a vehicle within the law and net in violation thereof. (Cariey. (1958) 156 Cal. App. 2d 643). An operator of a motor vehicle which has entered an intersection prior to or at the same time as another vehicle cannot arbitrarily rely on the right-of-way gained as the result of excessive speed or by other negligent act or violation of law. (Brown (1948) 84 Cal. App. 2d 401).

    NOTE: A review of cases nationwide will generally indicate a loss of right-of-way during unlawful operation from exceeding posted speed limits to reckless driving. However,the majority are for unreasonable violations such as high rates of speed, reckless driving, speed exhibitions. and driving at night without lights.

    Note: The implication is that to lose the right-of-way the driver must be far out of line. A driver of a motor vehicle who is obeying the law has a right to presume that other persons operating motor vehicles upon the 19 highway will perform their duty and obey the law. (Bartmess (1956) 139 Cal. App. 2d 394).

    21801{b) - A driver having so yielded and having given a signal when and as required by this code may turn left or complete a U-turn, and the drivers of all other vehicles approaching the intersection from the opposite direction shall yield the right-of-way

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

    16028. (c) If a peace officer, or a regularly employed and salaried employee of a city or county who has been trained as a traffic collision investigator, is summoned to the scene of an accident described in Section 16000, the driver of a motor vehicle that is in any manner involved in the accident shall furnish written evidence of financial responsibility or may provide electronic verification of evidence of financial responsibility using a mobile electronic device upon the request of the peace officer or traffic collision investigator. If the driver fails to provide evidence of financial responsibility when requested, the peace officer may issue the driver a notice to appear for violation of this subdivision. A traffic collision investigator may cause a notice to appear to be issued for a violation of this subdivision, upon review of that citation by a peace officer.
    24400.
    (a) A motor vehicle, other than a motorcycle, shall

    be equipped with at least two headlamps, with at least one on each side of the front of the vehicle, and, except as to vehicles registered prior to January 1, 1930, they shall be located directly above or in advance of the front axle of the vehicle. The headlamps and every light source in any headlamp unit shall be located at a height of not more than 54 inches nor less than 22 inches.

    (b) A motor vehicle, other than a motorcycle, shall be operated during darkness, or inclement weather, or both, with at least two lighted headlamps that comply with subdivision (a).

    (c) As used in subdivision (b), “inclement weather” is a weather condition that is either of the following:

    (1) A condition that prevents a driver of a motor vehicle from clearly discerning a person or another motor vehicle on the highway from a distance of 1,000 feet.

    (2) A condition requiring the windshield wipers to be in continuous use due to rain, mist, snow, fog, or other precipitation or atmospheric moisture.
    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).

    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.

    I have never had an accident and a CDL holder for my employment and need to maintain a clean driving record. I own two race cars and take driving very seriously. I find it crazy that they are ignoring the photos and video and basing their decision on the police report which may be biased. I also mentioned this to them an they seemed to brush it off like it never happened.

    I realize this will be a long up hill battle and any information or advice you guys could provide would be greatly appreciated.

    Matt

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Well, itís pretty simple; the fact there was an accident proves it was not safe to turn. That isnít the issue.

    what your attempting to do is put the causality on the other guy for not having his headlights on but in either case it is clear it was not safe to turn when you did.

    Did the cop ask the guy if his lights were on?

    Were there street lights?

    nkt havjng his lights on is not necessarily enough to remove your culpability. The totality of the conditions at the time of the accident can make a big difference.


    I am curious as to why you think the police lack of noting skid marks is beneficial to you. What skid marks would show was the other driver was attentive and realized you were turning in front of him and attempted to stop. If you want him to be found negligent, you would prefer him showing that in all actions.

    I also donít see anything your pictures could show that would prove negligence on the other drivers part.

    About the only thing that could aid you is being able to prove the other guy didnít have his lights on (and with the advent of led lights Iím wondering how such a question will be answered in the future as incandescent lights are being used less and less) and that and the lack of area lighting made it such that the other vehicle couldnít be seen. Without a courts in involvement (and it may already be too late to investigate the matter) I donít see you being able to succeed. If you cannot prove he didnít have his lights on, I donít see you winning.

  3. #3
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    Jul 2018
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    CA
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Thank you for your response.

    In hindsight, yes it was not safe to turn, but that does not change the fact the the other party was unlawfully operating a motor vehicle and forfeited their right-of-way once they entered the roadway. They violated two sections of CVC and should have had their license suspended for not having insurance regardless of who was "at fault".

    Did the cop ask the guy if his lights were on?

    I don't know what was asked of the other party on scene They were taken away in the ambulance. I made three statements to three different Sheriff's officers and no one took a moment to investigate the lights?The police report makes no mention of having asked the other driver about the status of their vehicle.

    Were there street lights?

    There were street lights yes. This area of Lancaster is quite remote and isolated. Street lamps are about 100-200 feet apart, only portions of the road under the lamps are illuminated.

    nkt havjng his lights on is not necessarily enough to remove your culpability. The totality of the conditions at the time of the accident can make a big difference.

    The conditions of the scene are stated above in the OP.

    The reason I am mentioning the lack of skid marks on the report is because I believe there is bias in the police report and inconsistencies. In speaking with local CHP officer he asked me why a FST wasn't done and if the headlights filaments were checked at all. The police report makes no mention of this. He also told me to go the the Sheriff office in person and request another investigation be done by another officer with all of the evidence.

    The skid marks at the scene, are less than 20 feet long and no evasive action was taken. There is another open lane to the right of the number two lane. SO if she was attentive and paying attention they should be a lot longer.

    Would you mind looking at the video in the link below? I don;t think you may have read all the above stating I have the video footage.

    "If you cannot prove he didn’t have his lights on, I don’t see you winning."

    I have video surveillance footage of my vehicle being hit by the other party, and shows no headlights on the vehicle were on. In fact the camera was pointed directly at where the impact occurred. You see no ambient lights changes on the road prior to impact and in the frame prior to impact you can clearly see no illumination from the other party's vehicle.

    https://www.dropbox.com/s/2flqk46ead...Uhaul.avi?dl=0

    Why do you think it is too late for the court to investigate? The statue of limitations for an accident in California is 2 years.

  4. #4
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Why do you think it is too late for the court to investigate? The statue of limitations for an accident in California is 2 years.
    first, the courts don’t investigate, the parties involved investigate but I was referring to you or somebody on your behalf. The headlights may not be available to check the filaments


    but from the video it doesn’t appear that is needed.

    It does appear the other car was quite close when you started your turn. I would say a 20’ skid mark shows a very quick reaction from the other guy. There also was no time to take evasive action.

    Anyway, it’s tough to tell what the lighting was like. Especially since your headlights would have pointed directly at the other car at some point when he was quite close, I would think you should have seen him If you actually looked. That makes your statement that you didn’t even see the vehicle or realize it was there until it hit you not good for you. It suggests you were negligent in not seeing a car heading basically directly towards you. It suggests you simply turned because you didn’t see anymore headlights without actually looking to see if it was clear.

    At best I think you could end up with contributory negligence on his part but I don’t believe you will be found not negligent entirely.

    Given you have a cdl it is likely you should hire an attorney to deal with this. It is probably too important to risk doing it yourself.

    If you want the other guy to be found culpable, you’ll have to go to court. The entities involved do not have to change their position. Only a court has the authority to make a legally dependable decision on the matter


    Just so you dont think im not understanding of your argument, I have experienced something similar. As I drove down a main highway (5 lanes (2 each direction plus a center turn lane)) with fairly light traffic and poor lighting, I realized the traffic ahead of me was moving quite strangely, like in an attempt to dodge something in the road. What was in the road was a drunk driver heading the wrong way in our lanes with his lights off. Yes it was quite difficult to see him but luckily all did avoid him.

    The biggest difference in our situstions is he was in my lane heading towards me but In yours you were crossing his lane. You were obligated to make certain your path of travel was safe.

  5. #5
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    Jul 2018
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Thanks you for looking,

    My question is why the filaments not checked on scene? Not after the fact. Its part of the POST Law enforcement training. There are headlights in the debris field as well as one unit still attached to the vehicle. Why was the scene not investigated to their training guidelines? Why was a FST not performed?

    "If I would have looked" is not really helping here and you seem to be making an assumption. I can assure you I did look and the vehicle was never at any point in the field of view of headlights from the time we were facing straight, from the start of the turn up until were hit. Both my girlfriend and I were looking forward the whole time and did not see them. I did not just "see no headlights in front of me and turned". This is where the insurance company should be sending out someone to take photos of lamps post, skids marks etc.

    How are you making the determination that the vehicle was quite close? There's no way you can tell how fast the vehicle was going based on the video let alone its position before the impact.There are only two frames of video Of the damage inflicted this small four door sedan weighing maybe 3000-3500 lbs pushed a loaded SUV with trailer almost to the curb with probably weight a GCVW of 6500-7000 lbs. The amount of force it would take to do this is immense. This vehicle was travelling above the speed limit based on the damage inflicted.The determination of this has been made when it was inspected at an auto body shop.

    I think if you go out and see how this roadway is lit at night and any person would not be able to see a dark color car travelling at a high rate of speed without headlights on.

    Are you saying once a fault determination has been made I have no recourse?. I can deal with contributory negligence on being primarily the other driver's part. If this driver DID operate her vehicle lawfully would the accident still have occurred?

    Regardless of the above, they were still operating unlawfully and forfeited their right of way. How does that enter into all of this? Does a vehicle still have right of way when its operating without headlights at night? Reckless driving? Racing?

    Is fault being determine based "solely on turning left"? If we are determining fault it shouldn't it go both ways. Considerations of violations that caused the accident should be on both sides? I'm not trying to claim "no fault" but the percentage they have given should not be the way it is.

    What do you think the police report being inaccurate? And actions taken by the officers that night? The comment of "my uncles is a Sheriff and wants to speak with you?"

    Is getting the police report supplemented worthwhile based on the video and photos and having another officer investigate?

    I'm not trying to be argumentative, and I appreciate your input. I've just been frustrated with this whole ordeal. Being in a accident with an uninsured motorist with no lights on seems so backwards. Being from Canada, when an accident occurs they send out a team they take their own pictures measurements and complete a full investigation. Here it seems a little more like the wild west

    Trying to find an attorney for this is difficult because almost all accident attorneys only take on injury cases. Part of the reason I'm asking here. Would you suggest a type of attorney for this?

  6. #6
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    You were looking forward all the time?

    wow, after I determine it is safe to turn I look where I’m going.

    Anyway there was likely no investigation done beyond what the cop onnthe scene did was because he was comfortable with his set of facts and felt his conclusion was clearly correct. Personally I’ve yet to see a cop respond to an accident scene that really gave a rats butt about the facts. I’ve seen egregious errors in every one with many resulting in a preliminary incorrect placement of causation.

    If your insurance is willing to review their decision if you obtain a supplemented police report I would surely take that step.

    Actually speed can be determined from the video, at least to a reasonable degree of accuracy. The frame rate is a set amount of time and the distance traveled from from to frame can be determined so it’s a simple calculation to determine the speed of the other csr

    As to an attorney: you are apparently looking at personal injury attorneys. Those are the guys that usually work on contingency and represent accident victims seeking compensation for injuries. You are looking for an attorney that deals with cdl drivers license issues. That is closer to a criminal defense attorney than a pi attorney. There are some attorneys that specialize to an extent in cdl license issues. That is the guy you’re looking for.


    Regardless of the above, they were still operating unlawfully and forfeited their right of way.
    because they don’t lose their right of way merely for speeding or not having their lights on. It requires a review of all of the conditions involved to determine fault. If I recall in California the cop cannot apportion fault so it’s either you or them and the cop apparently felt you were more culpable than the other party. Your insurance can apportion fault for their purposes but it is not legally binding. Only a court can legally assign fault.




  7. #7
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Really dude? You took my words literally. I've been racing for 10 years, yes you look where you want to go. You turn into the slide etc etc. You head is on a swivel its not in a locked static position. Please don't condescend me

    Thank you for your input so far, but you seem to providing no other insight. I work in Broadcasting and am certain aware of determining the speed via video, however you need a larger length of video to be accurate. But I'll take your word and ignore the body shops experience.

    This applies;

    A review of cases nationwide will generally indicate a loss of right-of-way during unlawful operation from exceeding posted speed limits to reckless driving. However,the majority are for unreasonable violations such as high rates of speed, reckless driving, speed exhibitions. and driving at night without lights.

    Thanks

  8. #8
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Yes I took you literally. Is there some reason you would lie? Say what you mean.
    This applies;
    A review of cases nationwide will generally indicate a loss of right-of-way during unlawful operation from exceeding posted speed limits to reckless

    no, that’s doesnt apply. What applies is the most recent applicable statute and case law within California.

    as to taking the body shops determination of speed against an actual valid means of determining the speed? Ok. They can provide a guess at best. The calculation using the video, even as short as it is, would provide you a more accurate determination. In the end it doesn’t really matter since that does not change anything. Unless the guy was hidden by a curve or something and his speed was so great it would have caused an unavoidable accident, his speed will not shift the culpability onto him. It appears the road was relatively straight so That possibility is out.

  9. #9
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Quote Quoting silverbullet42
    View Post

    Is fault being determine based "solely on turning left"?
    Basically yes, but sometimes no.

    Here's how negligence law works. When you make a left turn you have a duty to yield to oncoming traffic. You made the turn and got hit. That means you failed to yield. Had you yielded you would not have been hit. Failing to yield is negligence. Negligence puts you at fault for causing the accident.

    Is it possible that the other driver's actions could reduce or eliminate your liability? Sure. I had it happen to me. I started to make a left and got hit by an oncoming car. Fortunately for me there was a witness behind that car who testified that the other driver ran the red light so I was absolved of negligence.

    All your video proves is that you turned in front of the other vehicle and got hit. It also shows that his lights were off.

    What it doesn't prove is that you couldn't see the oncoming car because the lights were off. I hope you understand the distinction.

    All we have is your statement that you couldn't see the oncoming vehicle. Your statement is biased and self serving as is any statement made by your passenger. Neither of which is given any credence when all the other driver has to say is that you turned in front of her, which is exactly what your video shows.

    The burden is on you to prove not that the lights were off but that you couldn't see the oncoming vehicle due to the lights being off.

    How would you do that? Beyond just saying it.

  10. #10
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    Default Re: Hit by Uninsured Motorist with No Lights, Insurance Ignoring Evidence

    Is your insurance not paying for damages? You state that no ticket was issued for either party - so how is your driving record being affected? Also I do not know how racing = good driver. I've known a few race car drivers and none of them have as good a record as I do, and they've been in more wrecks than I have - and I've never raced.

    I agree that the other driver shares some of the blame, but the evidence is not sufficient to determine full blame. Since there was no ticket, and your insurance is covering the damage, what would you take to court???

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