Car Accident - complicated circumstances, second opinion needed please

[paul79]

Hi there,

 

This is quite a complicated one, but I'll try to break it down as best I can.

 

The accident took place around March 2010, during which time there has been a lot of back and forth between my solicitors and myself.

 

Here are the facts:

 

* I was driving with TPF&T and was struck by a third party to my driver side.

* No other witnessess were available.

* My wife and I and my 1yo son were in my car

* The TP had a passenger in the front passenger seat

*

I was on the inside lane, he was on the outside lane and encroached onto my lane just slightly ahead of me, I blasted the horn and tried to swerve away by which point it was too late. He struck my car side on.

 

We both got out of our cars, I immediately noticed that he seemed DUI (slow slurred speech, delay in response, twitchy eyes and upper lip).

 

He asked me what had happened implying the accident was my fault. I immediately corrected him and told him that it was in fact he that came into my lane and caused the accident.

 

We exchanged details, I took a picture of the damage to my car and took a picture of the rear of his car (mainly to get the licence plate and car make/model information).

 

He then went on to say sorry for causing the accident, we both got into our cars and left it at that.

 

I continued on the rest of my journey, 200m or so left as we were going to get some lunch at the retail park just metres from where the accident took place.

 

My gut told me to phone the police, so I did to report the accident and report a suspected DUI.

The police took the details and the TP details and said they would try and find him to carry out a test.

I got home to report the accident to my insurance company, then we got on with the rest of our day.

I contacted the police the next day to see what the outcome was, they told me that they were unable to locate the driver within the timeframe necessary to prove or disprove my DUI suspicions.

 

Now up until now the following has happened;

 

• TP and passenger changed story and reported that I was at fault for the accident.
  
• TP was uninsured when the accident took place, he was driving on his grandads insurance
  
• TP had repairs done to his car privately and not through his insurance company
  
• TP repair documents never seen by my solicitors
  
• My car was written off due to mechanical damage (driveshaft and other systems damaged due to the sideway impact)
  

My wife suffered from whiplash and lower back pain and had to have physio for 7-9 months after the accident, she is still taking pain killers as well nearly a year later.

I suffered a damaged rotator in my left shoulder, again self medicating with pain killers.

 

Now I am at the point where my solicitors are advising me that a 50/50 settlement is the way to proceed with this nightmare of a situation as it is me and my wife's word against the TP and their passenger. They will not take it to court as there is no rock evedence to prove my story to be correct.

 

I am in a situation where it seems that I will have to reluctantly accept this as the case has now been looked at by a Senior partner within the firm and it is he who is suggesting the 50/50.

But I cannot help but think that there is evidence to take this to court, summarized below;

 

• TP passenger claims not to have seen the accident but insists she knows it was not her driver that caused the accident this to me makes no sense
  
• TP driving without insurance - surely if this was the case then the accident shouldnt have taken place in the first place as he shouldnt have been driving the car
  
• TP had car repaired outside their own insurance. Why would they do this out of their own pocket if they weren't at fault - makes no sense to me
  
• TP passenger clearly states on the witness form "No" to the question did you see the accident - surely this takes her statement out of the equation?
  

 

I can upload ALL statements and will do this later today.

I would really appreciate a second opinion on this as not only will I be admitting part liability for an accident that wasnt my fault, it is also going to affect my premium on what has otherwise been a clean sheet for my insurance for 12 years.

Thanks,

 

Paul.

[paul79]

Here are the associated pictures and documents relating to the accident;Impact Diagram

 

My Statement

 

TP Driver statement

 

My response to TP statement

 

TP passenger statement Page 1

TP passenger statement Page 2

 

My Solicitors StancePage 1My Solicitors Stance Page 2

[stugib]

But I cannot help but think that there is evidence to take this to court, summarized below;

 

• TP passenger claims not to have seen the accident but insists she knows it was not her driver that caused the accident this to me makes no sense
  
• TP passenger clearly states on the witness form "No" to the question did you see the accident - surely this takes her statement out of the equation?
  

I can't see anywhere where they claim to know who caused the accident - as your solicitor says, she just says as far as she was aware there car stayed in their lane. There's no reason to ignore that - she may not have seen the accident, but she does say she saw where there car was.

 

• TP driving without insurance - surely if this was the case then the accident shouldnt have taken place in the first place as he shouldnt have been driving the car
  

Don't think it really matters to you. It's a 'fault' claim if your insurer can't recover their costs from the TP, regardless of who caused the accident. If they're uninsured they won't be able to recover their costs easily. Him being on the road or not is a police matter, doesn't affect liability/costs. How do you know he was uninsured - do you know he wasn't a named driver on his grandad's insurance?

 

• TP had car repaired outside their own insurance. Why would they do this out of their own pocket if they weren't at fault - makes no sense to me
  

Doesn't have to be anything sinister, beyond the fact he may not have been insured and so they couldn't put a claim in without lying about who was driving. Even if he was insured, they may have just wanted to avoid future premium increases by not putting a claim in, or the repair costs may have been less than his excess and he didn't want the hassle of trying to claim the excess back from you etc etc.

[paul79]

Hi Stu,

 

Appreciate the feedback, but I think I'll wait for a response from someone who has had more than 2 posts within the last 5 years,

P.

[unclebulgaria67]

Have looked through all the information. I suspect your solicitor is correct that 50/50 is the likely outcome. BUT it is your decision for which you might choose to obtain a second legal opinion. If the other driver was not Insured, if you took them to court, how likely is it that they would defend any action by you* ? In court, if they attended they could be asked akward questions and this might assist you. However, if the court are only interested in liability on the balance of probabilty, they might dismiss any accusation of DUI without proof and that being unisured is not relevant

 

If after getting a second legal opinion, you decide to go ahead with a court claim against the third party, just make sure your Insurers will indeminify you, if there was a successful counter claim from the third party.

 

* I raise the point about the third party not defending any court action by you, on the basis that they were not insured, so will not have lawyers from an Insurance company helping them. If they could not afford legal representation, the chances are they might not defend or try to do it themselves. If this is so, then I would think you had a reasonable chance, if you had a decent solicitor. But this is a risk you would need to consider, as you would not want to incur costs and still end up with a 50/50.

 

There are a few others on this site with more experience with claims litigation, who might add answers if they see this post. So wait a day or so to see if they reply.

[paul79]

Thank you my "Wise Womble" friend.

 

As far as my solicitors are concerned, I do hold reservations about their overall performance.

 

For example, it was a team leader within their contact centre who initially stated that a 50/50 outcome would be likely.

 

When pressed, I discovered that this gentleman had no law or relevant experience so I asked if he was really the right person to be making that decision.

 

It was only then in November (6 months since the accident) that the case was actually looked at by someone in the legal team within the firm, it just so happened to be one of the senior partners so I must have said something right in order for that to happen.

 

I never actually considered the scenario of the TP having no insurance therefore no legal cover, so this may be an avenue I could proceed down.

 

I will however hold off for a few days to allow others within the CAG to provide feedback, but I sincerely thank you for your advice and assistance with this. It's been a source of stress and annoyance for too long and one way or another we need to speed it towards conclusion.

 

Thanks again,

Paul.

[unclebulgaria67]

Remember that if you achieve a 50% or 100% success with this, that the claim will then probably go to the MIB. This is on the basis that with the third party being uninsured, they probably won't pay themselves and therefore the MIB will pick up your claim. I am not certain whether the MIB would look to appeal any decision they were not happy with or whether they would just pay up. What is for certain is that with either a 50% or 100% decision in your favour, is that the third party is going to be pursued for a fair bit of money, as the MIB solicitors will eventually go after them.

[stugib]

Appreciate the feedback, but I think I'll wait for a response from someone who has had more than 2 posts within the last 5 years,

P.

WTF has my posting history got to do with the accuracy of the advice?

[paul79]

WTF has my posting history got to do with the accuracy of the advice?

No need to get agressive...jeez.

 

All I was meaning was I would rather go on advice from someone who is active within this particular area of expertise and from what I could tell you have posted twice since 2006 in CAG.

I stand by the conclusion that I draw. I would rather take advice from someone who is well established within CAG and has a rep for helping others, wasn't a personal attack on you as a person.

[Endymion]

There are a couple of points your solicitors seem to have overlooked or not considered to be relevant when they probably are and a few other points:-

 

1. It is likely that the grandfathers insurance will cover the claim, but if not the MIB are likely to be served by your solicitors.

2. The TP is probably unlikely to give evidence and even if he does, as he was committing an illegal act his evidence will count a little less than yours and your wifes (was he convicted of driving without insurance?).

3. The Defendant's have not made any Part 36 offers and therefore you are not under any litigation risk for costs as it is very likely that you will succeed, at least in part, to have some liability attach to the TP in this accident. As such, you can go to court knowing that you are under little risk and if the TP does not file any signed witness evidence and does not give oral evidence in Court then you will succeed 100%.

 

I would press on and get your solicitors to issue proceedings to force the Defendant's hand (although this will depend on whether the insurers indemnify or the mib get involved) . Obviously if the Defendant's do make a Part 36 offer of 50/50 then your risks increase and you have to consider things further.

[paul79]

Hi Endymion, thanks for the response.

 

I will contact my solicitors again tomorrow morning and put to them what you have laid out in your response.

The main problem I am having is trying to insist they force the TP hand in this and I don't know even with the above scenario being put to them if it will make a difference.

 

I will of course try to be as persuasive as I can, the fact that if the TP did testify requiring him to admit he was driving without insurance seems unlikely as he would be admitting a criminal act (I never looked at it from this angle before).

If I have no joy with my solicitors then I will get in touch with my insurance company to see if they will indemnify me before proceeding.

 

I am extremely reluctant to accept 50/50 on this due to the circumstances of the accident and injury and suffering my wife has been put through since it took place.

I will update this thread once I have heard back from my solicitors, and thank you again for your valued input.

 

P.

[paul79]

Straight from the horses mouth...

 

Email sent by me yesterday to solicitor...

"Just for clarirication, can you confirm whether or not the Third Party was or was not correctly insured at the time of the accident please?"

 

Email received back this morning

"The third party was not insured to drive the vehicle however the vehicle was insured and the third party driver was identified, therefore Royal Sun Alliance should deal with your claim."

 

The driver was never convicted for driving without insurance as this never came to light until a few days after the accident.

 

So where do I go from here?

 

Thanks,

Paul.

[Endymion]

It really depends on whether your insurers are going to indemnify you and fund any litigation if you object to the advice of your solicitors and want to go to Court. if your insurers pull the plug on you if you threaten to go to Court then your solicitors will come off the record and you will not have any protection if you do lose, albeit that being unlikely, but still a risk.

 

I would still personally put pressure on your solicitors to go to Court as they are unlikely to lose their costs, they can get the matter out of the fixed fee scheme, the TP is unlikely to give oral evidence and his character and honesty can be brought into question due to his nefarious activity at the time of the incident.

 

As an aside, I would also tell your solicitors to confirm to the TP's solicitors that if they do supply any witness evidence from the TP that is CPR compliant i.e. with a statement of truth, that you will be referring this to the CPS and also if the TP gives oral evidence at Court you will be requesting that the trial judge, irrespective of the finding of liability, refer the TP to the CPS for considertation of prosecution in a criminal court.

 

Might make him think twice about giving evidence...

[paul79]

I am on the phone to my insurance company now to see if they will indemnify me if I don't get any joy from my existing solicitors and take it to another solicitors for a second opinion.

I am putting the scenario to them that it is very unlikely that the TP will orally testify and admit that he was commiting a criminal act when the accident took place.

 

It amazes me that the solicitors I am dealing with just now seem to have completely overlooked this in the first place, and this has gone right up to one of their senior partners to look into.

 

Unreal.

(update to follow)

[paul79]

Ok, was passed through from Admiral to Albany Assist solicitors team.

Explained the situation and my extreme reluctance of going on a 50/50 split.

They are going to speak to the Claims handler I've been dealing with at the solicitors to get a better understanding of "where it's at" and get back to me later this week.

They're also going to decide whether or not to indemnify me on the information they obtain from the solicitors, should be interesting.

 

Will update again when I know what's happening!

Thanks,

P.

[Mwynci]

Legal expenses insurance can be unnecessarily complex, apologies if this is confusing.

 

Please also assume I could be totally wrong!! - I can see why your loathed to allow the third party to get away

 

Albany will deal on a basis of reasonable prospects (it will be in your legal expenses policy wording), the TP uninsured status should not be taken into consideration. It's a good challenge on a common sense basis, but not in a legal basis of proving negligence, you also need to be aware that whilst the driver was uninsured, the vehicle was, RTA liability is satisfied, and often a court will be content with that.

Therefore liability is no (based on your evidence) better than 50/50. Albany will not want to risk costs on a basis of more than that, whilst they may get them back if it goes to court and they win, they have assessed (based on a solicitors legal opinion on the black and white facts) they will probably only get 50% and won't take the risk.

 

If they maintain this stance the advice offered by Endymion is correct that you may have to consider going solo, this could seriously affect your position regarding the injury claim, and potentially be expensive, either that or make a complaint to the underwriter of the policy (it won't be Admiral) or the FOS. They may then appoint another solicitor, or a barrister, but don't have to if they already have a bona fida solicitor’s opinion. Often the FOS will back the legal insurers in these cases.

 

A lot more will depend on the stance the tpi have made, but by the sounds of it the 50/50 has been made.

 

Good luck with it

[paul79]

Hi Mwynci,

 

The truly irritating thing is it seems to be only my solicitors making all the moves as far as the claim goes.

The TPI (RSA) has never approached us for a suggested settlement.

If I had the financial freedom to do so, I would let this simmer another 4-6 months to see what happened.

But at the end of the day, the TP had the repairs done privately so in essence their insurers couldnt give a monkeys whether this draws to a conclusion or not.

 

I've spoken with my wife again about this and I think we're just going to go for the 50/50 settlement, but will see what Albany assist come back to us with.

All in all a hard lesson learned. The next time (god forbid) we are in an RTA and there are suspicious circumstances I will be phoning the police to attend.

 

We just want to put this whole horrid situation behind us but at the same time we certainly don't want to be out of pocket on it either.

To make matters worse when I spoke to my insurers it appears that my precious 11 years NCB which was protected 3 years ago seems to have magically lost the protected status.

This is obviously another matter and I have requested Admiral "pull the tapes" and find exactly where and when I told them to remove the protection on my policy. They won't find it.

 

Nothing's ever straightforward is it? But thanks to everyone who is helping me get my head around this mess, it is gratefully appreciate by me and my wife.

 

P.

[Endymion]

Is your wife making a claim for her injuries? If she is and if you accept a 50/50 she will also be claiming off your insurance....

[paul79]

Yes she is making a claim for injuries sustained.

She's been suffering from whiplash, muscle pains in her shoulder and back for nearly a year, she just finished up her physio about 2-3 months ago.

All the more reason why I want this to have the fair outcome we deserve, albeit looking like it won't actually happen that way.

[Wulfyn]

"We just want to put this whole horrid situation behind us"

 

Sadly that's how they get away with it. Sorry to hear that yet another liar ruins someone's year.

[paul79]

Well that seems to be game over.

I've just had a call from a senior member of the Albany Assist solicitors team (assuming she was senior as she introduced herself as Mrs....)

 

They've spoken to my solicitors and they say there is no solid evidence to take it to court, they understand my frustration but they won't indemnify me if I wanted to take it further.

I pressed her on what Enymion mentioned above about the TP and his uninsured status and apparently he wouldn't even have to mention that as it had no bearing on liability.

 

It is with a heavy heart that I am now writing an email to my solicitors confirming that I want them to approach the TP and suggest 50/50 settlement.

 

Not happy but I believe all avenues have now been exhausted.

I appreciate everyone's input on this and will let you know how it goes. I can only hope that they reject the 50/50 offer and we do take it to court, but we will just have to see what pans out!

[paul79]

Nearly 6 months down the line and this is still going on...here's the latest for anyone monitoring the thread.

I have had 2 medicals, one physical in June and one psychological 2 weeks ago (August)

 

The physical medical revealed that I have a damaged right trapezius muscle and tissue damage at the base of my neck.

It turns out that the tissue damage could be what's causing my headaches which I get every now and then.

The doctor further concluded that my quality of life had been affected directly from the accident. This meaning that I was suffering and to a certain extent still suffer pain/discomfort lifting my 3yo Son, shopping, bags etc.

I was referred for physiotherapy and referred for a psychoanalysis too.

 

I am still awaiting the results/outcome of the psychoanalysis I had but sufice to say that the Doctor confirmed that a) My driving style and confidence have been rocked by the accident and b) It may well have contributed to worsening the depression I have been suffering from the last 2-3 years.

 

So...after all that, this morning I get a letter from my Solicitors dealing with the case, stating that the TPI have approached me with a settlement offer...AT LAST I thought.

I read down to the bottom of the page and they offered me...(wait for it)....

 

£1750 as a FULL and FINAL settlement.

 

Is it just me or is this completely taking the p**s?

Suffice to say I felt genuinely insulted by the offer and really did wonder if the TPI thought I was buttoned up the back!

I emailed my Solicitor saying NO DEAL within 10 minutes of seeing this "offer".

 

I've got to be honest, from what I've been reading elsewhere I was expecting this to be a HECK of a lot more, considering the length of time that's passed and my various problems arising from the accident.

Any comments or assistance on this would again be greatly appreciated.

 

Thanks,

Paul.

[ihateyes]

 

We both got out of our cars, I immediately noticed that he seemed DUI (slow slurred speech, delay in response, twitchy eyes and upper lip).

 

 

 

Paul.

 

 

Thats why if you suspect someone is dUI, you should get whoever is in the car to call the police, and they can come and deal....

Edited August 28, 2011 by ihateyes

[ihateyes]

How fast were you travelling at??? really draggin on now though.....

 

When i was on a Scooter and got T-boned by a taxi i had my money in 9mth..... the other party kept denying, until they got prosecuted in court..... i also had to have Physio, but thankfully no broken bones.

[paul79]

Hi mate,

I had contacted the police directly after the accident, gave them the full info they requested etc and left it at that.

Phoned them the next day to see what was happening to be told they couldnt locate the vehicle or the driver within the timeframe required to prove either way if he was DUI. In other words if he was DUI, the drugs would have been out of his system.

 

So I did all I could but to no avail.

The speed of the accident was between 25 and 35, but the angle of the collision and the position I was in at the time of impact was what caused the problems.

 

So in your opinion, do you think the £1,750 offer is about right, or like me do you think they are pulling my chain?

 

I may be desperate for the money, but there is no way in h**l I'm accepting such a blatantly low offer.

Edited August 28, 2011 by paul79