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motherinaz

Auto Accident

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I was in car accident last year in a parking lot.  The adverse party backed out of her parking spot quickly and hit my stopped vehicle.  Her carrier found her to be 100% at fault through my statement and statements of two independent witnesses.  They paid for my car to be fixed and a rental.  They however refused to pay for my injuries as well as my 3 dependents that were in the car.  I filed suit against the driver (seems I didn't serve the insurance dept correctly) and now the insurance company has hired her a defense counsel and now claim that I am fault for the accident.  Trial is set for July (which everyone I spoke to advised it would never get this far).  I have asked for the claim file from the attorney and he indicated it is protected.  I am waiting for ruling from the judge.  Can I call the claims adjuster as a witness to the trial?

 

Thank you

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You didn't identify a state....why would you call the adjuster?  Your car was repaired so it appears the only issue is the injuries you are claiming.  The adjuster didn't see the accident, your witnesses did.  The adjuster can't verify the extent of your injuries or the probable cause, the treating doctors can.   Contact your insurance carrier for assistance.

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This happened in AZ.  Now that I have filed suit, the defense counsel is claiming I am at fault for the accident and need to prove I wasn't.  Myself, as well as the independent witnesses gave statements to the insurance company and I have in writing from the adjuster their policy holder is at fault.  However, according to defense counsel, all of that information is not admissible in court to determine liability.  I assumed if I call the two witnesses and the claims adjuster, they would be able to tell the jury what happened (witnesses) and then adjuster could reaffirm they found the defendant at fault already.  I filed a motion to compel the recorded or non recorded statement from myself and the witnesses and are still waiting for a ruling from the judge.  I guess I am confused as to why I am fighting a liability issue when my complaint was for bodily injury.

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When you say the defense counsel is claiming you were at fault, do you mean that the defendant alleges your fault as a defense or has the defendant filed a counterclaim against you? At the very least you must put on a case demonstrating the other driver was negligent and was the proximate cause of your injuries. This will entail you presenting witness testimony (inlcuding testimony from your treating doctors) in court. The defendant is free to try to prove that she was not negligent or that you contributed to the accident. Are you represented by counsel? Might want to be.

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Myself, as well as the independent witnesses gave statements to the insurance company and I have in writing from the adjuster their policy holder is at fault.  However, according to defense counsel, all of that information is not admissible in court to determine liability.

 

That's correct.  Your witnesses' statements are inadmissible hearsay.  You'll need to call them as witnesses to testify.  However, admissibility of evidence is not the standard for pretrial discovery, and it's beyond question that the witness statements (along with most, if not all, of the claim file) are discoverable.  Indeed, the lawyer's position is sanctionable, and I strongly suspect you will win your motion to compel.

 

 

 

I assumed if I call the two witnesses and the claims adjuster, they would be able to tell the jury what happened (witnesses) and then adjuster could reaffirm they found the defendant at fault already.

 

That the insurer previously accepted liability isn't legally relevant.

 

 

 

I guess I am confused as to why I am fighting a liability issue when my complaint was for bodily injury.

 

This doesn't make sense.  Your complaint is for negligence, and you are seeking damages for bodily injury.  In order to recover those damages, you must prove that the other driver was negligent (i.e., prove that the other driver is legally liable for your alleged damages).  I think you're probably under the misconception that the insurer's previous acceptance of liability is forever binding.

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Yes, I did assume that since her carrier found her to be at fault and only offered me a low ball settlement for the bodily injury, I did not realize I had to prove liability again.  I do have written correspondence from her carrier acknowledging she was at fault, but because it was a parking lot accident they only wanted to offer $500.00.  I have e-mail from one of the witnesses with his statement of the accident, but I could not get it notorized from him.  Is this admissible in court?  I guess bottom line is that I need to call both independent witnesses and dr that treated us to trial?

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No counter claim has been filed by the defendant or her counsel.  The accident was in August of 2013.  According to her carrier, they do not intend to file subrogation against my carrier because they found her to be 100% at fault.

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I do have written correspondence from her carrier acknowledging she was at fault, but because it was a parking lot accident they only wanted to offer $500.00.  I have e-mail from one of the witnesses with his statement of the accident, but I could not get it notorized from him.  Is this admissible in court?

 

As I mentioned before, written witness statements are inadmissible hearsay.  They can, however, be used to cross-examine a witness who testifies contrary to his/her prior statement.  Notarization is irrelevant and unnecessary.  As I also mentioned before, a statement (written or otherwise) that the other driver's insurer previously accepted liability is also inadmissible.

 

 

 

I guess bottom line is that I need to call both independent witnesses and dr that treated us to trial?

 

Almost certainly, yes.  Don't you have a lawyer representing you?

 

 

 

No counter claim has been filed by the defendant or her counsel.  The accident was in August of 2013.  According to her carrier, they do not intend to file subrogation against my carrier because they found her to be 100% at fault.

 

If you've got a trial coming up in two months, it's awfully unlikely that you'll be seeing a counterclaim.

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Never too late, but the proximity to trial may make it more difficult.  Doesn't mean you shouldn't start making some calls.  Otherwise you may find yourself outmatched regardless of the merits of the case.

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Defense counsel filed an answer to my motion to deny my request to compel the claims file.  Stated that the information in the file is protected by work right protection/attorney client privilege.  He also advised that any information in the file cannot be used in the trial. Can the  non recorded statements from the two witnesses but used as evidence when I exam them in court. Defense counsel also advised that I cannot mention the outcome of liability by the insurance company in court or it will lead to a mistrial.  Does anyone know of a website that I can look at for examples of jury selections stipulations and how to prepare for trial

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