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In California,
I received a demand letter for property damage (to the vehicle) in an
accident where the driver of the other vehicle is the vehicle owner's
adult daughter. If it goes to small claims, who might sue me? Would it
be the driver/daughter or would it be the vehicle owner? Both driver
and owner are insured under the same policy, but I doubt that matters.
If the wrong person files suit, can I make a motion to dismiss? Does
it matter to the court? Would the right person be able to refile?
On the other side, I will countersue. If the owner is suing me, it
seems reasonable that my claim would still be against the adult
daughter. In that case, would it still be a countersuit? Would my suit
be heard at the same time if it is not a true countersuit?
I have heard that suits filed by or against the wrong party can lead
to immediate dismissal. (I have never had to do this before.) If that
were to happen, can the correct party still file later?
Any strategy ideas and reference information would be appreciated.
Thanks,
Jim
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On 31 Jan 2004 17:27:22 -0800, jimbeasley@earthlink.net (Jim Beasley)
wrote:
In California,
I received a demand letter for property damage (to the vehicle) in an
accident where the driver of the other vehicle is the vehicle owner's
adult daughter. If it goes to small claims, who might sue me? Would it
be the driver/daughter or would it be the vehicle owner? Both driver
and owner are insured under the same policy, but I doubt that matters.
If the driver was injured, she can sue you. If the car was damaged,
the owner of the car can sue you.
If the wrong person files suit, can I make a motion to dismiss? Does
it matter to the court? Would the right person be able to refile?
If the plaintiff has no right to sue you, tell that to the judge. You
can't really make a motion to dismiss because you have to show that
it's the wrong person.
Yes, the right person can file later assuming the statute of
limitations hasn't expired.
------------------------------
Bob Stock, California Attorney
Nothing I've said should be relied on as legal advice.
------------------------------
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Thanks, Bob,
If the plaintiff has no right to sue you, tell that to the judge. You
can't really make a motion to dismiss because you have to show that
it's the wrong person.
I just found out the driver is a minor, so I expect her father, who is
the registered owner, and who wrote the demand letter, to sue, if it
comes to that.
My countersuit will name the drive (a minor) and the father
(registered owner and guardian).
I just started reading NOLO's California Small Claims book (15th)
addition, and it is very informative.
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Jim Beasley wrote:
In California,
I received a demand letter for property damage (to the vehicle) in an
accident where the driver of the other vehicle is the vehicle owner's
adult daughter. If it goes to small claims, who might sue me? Would it
be the driver/daughter or would it be the vehicle owner? Both driver
and owner are insured under the same policy, but I doubt that matters.
The owner of the property damaged, or their insurer.
What you need to is contact YOUR insurance company, preferably within
10 days of the accident. If that time is already expired, they will
probably still help you, but they might not.
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What you need to is contact YOUR insurance company, preferably within
10 days of the accident. If that time is already expired, they will
probably still help you, but they might not.
This case is getting more interesting.
I contacted my insurance company immediately, so I have that covered.
They denied the claim made by the owner of the other car. I'll have to
contact my insurance company on Monday to bring them up to date, but
the following happened tonight, nearly one month after the accident:
I received a phone call from the police department. The officer that
came to the scene on the night of the accident said then that he would
not be filing a police report, because there was no obvious way to
determine fault. His phone call tonight was to let me know that
someone up the chain of command had directed him today to make a
report of the accident. I asked if this type of direction was unusual
and he said he has never had it happen before. He said that if I want
to know why it is being done now, then I need to call a Sgt at the
station on Monday to inquire. He said he was not sure he had all of
the facts, so he didn't want to say more. This seems rather more
mysterious than just saying that someone was making a big deal about
it. I sounds like someone pulling strings. Maybe I'm overreaching.
He said I had declined a report on that day. I told him I may be
splitting hairs, but I didn't decline a report, rather that he said it
wasn't necessary under the circumstances (no obvious fault, no
injuries) and I found that to be reasonable.
When I spoke to the officer on the day of the accident, I didn't know
there was a witness. But later that night, I found someone who had
seen the accident. The witness saw what I saw. I told this to my
insurance company, the other insurance company, to the registered
owner, and I reported it in the phone call tonight.
I have a signed statement about the accident made by the other driver,
cosigned by her father, who is also the registered owner. It disagrees
with my statement.
I'm not sure what's going on here, but I don't want to get screwed
just because someone is letting themself be put in an awkward position
from which they will try to avoid being embarassed.
Maybe I should have asked earlier, and I'll bring it up with my
insurance company. If I receive a summons (Plaintiff's Claim), what
involvement does my insurance company have in the trial per se? I
assumed they might be involved in a settlement, if necessary, but what
about the actual trial?
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From: jimbeasley@earthlink.net (Jim Beasley)
This case is getting more interesting.
I contacted my insurance company immediately, so I have that covered.
They denied the claim made by the owner of the other car. I'll have to
contact my insurance company on Monday to bring them up to date, but
the following happened tonight, nearly one month after the accident:
I received a phone call from the police department. The officer that
came to the scene on the night of the accident said then that he would
not be filing a police report, because there was no obvious way to
determine fault.
That sounds really odd....it isn't the police officer's job to determine
"fault". He is to record the facts and he issues citations based on facts
only.
How bad was the damage? The police officer may not have filed a report if the
damages were under your state's reportability limits, but he should have at
least filed an incident report.
His phone call tonight was to let me know that
someone up the chain of command had directed him today to make a
report of the accident.
It sounds like the officer made a mistake and now is being ordered to correct
that mistake.....but the problem is that if he didn't think it was reportable,
then he probably didn't collect the details necessary to prove or disprove a
claim...lets hope he kept a detailed incident report...
I asked if this type of direction was unusual
and he said he has never had it happen before. He said that if I want
to know why it is being done now, then I need to call a Sgt at the
station on Monday to inquire. He said he was not sure he had all of
the facts, so he didn't want to say more. This seems rather more
mysterious than just saying that someone was making a big deal about
it. I sounds like someone pulling strings. Maybe I'm overreaching.
No, it sounds like the officer did not want to admit to you that he made a
mistake...
He said I had declined a report on that day.
You CAN'T "decline a report", it is the officer's job to write the report, and
it has nothing to do what the people involved in the crash want....he may have
thought you declined to have a report sent to you...
I told him I may be
splitting hairs, but I didn't decline a report, rather that he said it
wasn't necessary under the circumstances (no obvious fault, no
injuries) and I found that to be reasonable.
Well, he should have known better, but if he hasn't been well trained, maybe he
didn't.....
When I spoke to the officer on the day of the accident, I didn't know
there was a witness. But later that night, I found someone who had
seen the accident. The witness saw what I saw. I told this to my
insurance company, the other insurance company, to the registered
owner, and I reported it in the phone call tonight.
You need to also tell the police officer - er, maybe his supervisor- about the
witness...
I have a signed statement about the accident made by the other driver,
cosigned by her father, who is also the registered owner. It disagrees
with my statement.
That is to be expected.....the owner of the vehicle is going to try to get
someone else to pay for the damages on his vehicle if at all possible. If he
doesn't, then his insurance rates will go up...
I'm not sure what's going on here, but I don't want to get screwed
just because someone is letting themself be put in an awkward position
from which they will try to avoid being embarassed.
Maybe I should have asked earlier, and I'll bring it up with my
insurance company. If I receive a summons (Plaintiff's Claim), what
involvement does my insurance company have in the trial per se? I
assumed they might be involved in a settlement, if necessary, but what
about the actual trial?
I'm not an attorney, just a LEO, so I can't answer those questions...but this
sounds like it happened in a small town with officers NOT trained in crash
investigation. Depending on the amount of damages, you might consider hiring a
lawyer instead of handling it yourself. If you do decide to go it alone,
PLEASE get a copy of your state codes and read them thoroughly and be prepared
to defend why the crash could not have been your fault. Ask for a copy of the
officer's reports including the incident report on the day of the crash, and
all the records both insurance companies have on the crash. Make sure your
witness will be able to come to court with you on that day!!
Good luck!!
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Thanks for the response. I am guessing the other party was just angry
when he found out there was no accident report, so he complained a lot
and this is what happened, one month later.
The other party is claiming damages under the small claims limit, but
I guess he could go to Superior Court with it just to press my
buttons. It pains me to think that an arrogant jerk can work the
system and get something for nothing. You might guess that he didn't
have comprehensive insurance. I don't know for sure, but this would be
consistent with what's happening.
I think I'll post this question separately, but in the context of this
thread, I wonder if anyone knows what California VC 20013 means?
"20013. No such accident report shall be used as evidence in any
trial, civil or criminal, arising out of an accident, except that the
department shall furnish upon demand of any person who has, or
claims to have, made such a report or upon demand of any court, a
certificate showing that a specified accident report has or has not
been made to the department solely to prove a compliance or failure to
comply with the requirement that such a report be made to the
department."
Does this mean a judge can't take it into consideration? I have
written statements all around (other party's, mine, withness's). I was
thinking the accident report would be consistent with all of these,
but most likely vague (the officer told me he couldn't tell who was at
fault), so it wouldn't harm my position in court. However, the
reporting officer has called my witness, and any additional witness
statement on the record would be helpful to me. I am looking at the
worst case where I can't convince the witness to come to court (it
might be a reasonable burden). So worst case is I would have the
written witness statement submitted to the insurance company and the
witness statement taken by the reporting officer and made part of the
accident report. (It's too early to see the accident report. It's
still Sunday here, one month after the accident and two days after the
report was written.)
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jimbeasley@earthlink.net (Jim Beasley) wrote in message news:<fad45c70.0402081710.4e602db4@posting.google.com>...
Thanks for the response. I am guessing the other party was just angry
when he found out there was no accident report, so he complained a lot
and this is what happened, one month later.
The other party is claiming damages under the small claims limit, but
I guess he could go to Superior Court with it just to press my
buttons. It pains me to think that an arrogant jerk can work the
system and get something for nothing. You might guess that he didn't
have comprehensive insurance. I don't know for sure, but this would be
consistent with what's happening.
I think I'll post this question separately, but in the context of this
thread, I wonder if anyone knows what California VC 20013 means?
"20013. No such accident report shall be used as evidence in any
trial, civil or criminal, arising out of an accident, except that the
department shall furnish upon demand of any person who has, or
claims to have, made such a report or upon demand of any court, a
certificate showing that a specified accident report has or has not
been made to the department solely to prove a compliance or failure to
comply with the requirement that such a report be made to the
department."
20013 refers to the accident reports that drivers are required to
make. Other sections nearby govern the "counter reports" that police
may (often don't, in fender-bender cases) make. In somewhat simpler
English, it means that the court can consider whether the driver filed
the report, but that's all -- not the contents of the driver's report.
A practical consequence is you won't have drivers invoking the Fifth
Amendment in order to refuse to make (or to excuse not making) an
accident report.
Does this mean a judge can't take it into consideration? I have
written statements all around (other party's, mine, withness's). I was
thinking the accident report would be consistent with all of these,
but most likely vague (the officer told me he couldn't tell who was at
fault), so it wouldn't harm my position in court. However, the
reporting officer has called my witness, and any additional witness
statement on the record would be helpful to me. I am looking at the
worst case where I can't convince the witness to come to court (it
might be a reasonable burden). So worst case is I would have the
written witness statement submitted to the insurance company and the
witness statement taken by the reporting officer and made part of the
accident report. (It's too early to see the accident report. It's
still Sunday here, one month after the accident and two days after the
report was written.)
Police "counter reports" in property-damage-only accidents are
supposed to avoid making a determination of fault -- unless they're
backed up by physical evidence or an admission of fault.
By the way, your insurance company is supposed to provide your defense
(and they will not thank you if you go it alone). This means that they
may be allowed to settle even when you think you could have gotten a
better result. If you interfere, you may not be covered if the case
goes against you.
--
Not a lawyer,
Chris Green
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Jim Beasley wrote:
Maybe I should have asked earlier, and I'll bring it up with my
insurance company. If I receive a summons (Plaintiff's Claim), what
involvement does my insurance company have in the trial per se? I
assumed they might be involved in a settlement, if necessary, but what
about the actual trial?
Your insurance company is required to defend you, up to and including
court. (The lawyer is required to represent YOU, rather than the
insurance company, unless the damage exceeds the plan limit.)
This is my understanding of the law in California. If you're in a
"no fault" state, your mileage may vary.
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The police report was completed and it doesn't say anything different
from what I knew, so no one was meddling with the facts. I am pretty
sure now that the owner of the other car was just being a pain in the
neck with the police, so the police produced the report. It didn't do
him any good, but only emphasized that now the police have talked to
the witness and that statement is on the report (and also with the
insurance companies).
Your insurance company is required to defend you, up to and including
court. (The lawyer is required to represent YOU, rather than the
insurance company, unless the damage exceeds the plan limit.)
Thanks for the information. I'll just keep the insurance company up to
date on the correspondance and information I receive. That way they
can tell me what I need to do.
The owner of the other car did take me up on my request for a written
statement of the facts (signed by the driver and countersigned by him,
the guardian), after I told him I wouldn't consider his demands
because he failed to include a statement of the facts in his demand
letter. It will be interesting to see how many versions of the
accident they come up with. (The version I have heard and seen has
some interesting and questionable assertions, even in the absence of a
witness.)
I'll pass the fact that there is now a police report on to the
insurance company as well. I'm going to step back now unless I get
served or harrassed by the owner of the other car.
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