car insurance claim disputed

guardian_girl

Hi, I've been reading the posts on this forum and finding the advice people give really helpful! Thank you all, its nice to know strangers will try to help each other as much as they can!

My mum had an accident end of Sept 09 and it wasn't her fault. The other driver was parked on zig zag line on a busy high street and opened their door without looking. So my mum crashed into the door.

She gave the other driver her contact details but the other driver only gave a name and refused to give her their own contact number. There was a witness there that agreed to give a statement to say it was the other driver's fault.

My mum got in touch with her insurance company and told them everything that happened. Because she has fully comprehensive insurance, they agreed to pick up her vehicle and give her a courtesy car while hers is being repaired. She gave them all the details they needed, she filled out a road traffic accident form and handed it into the police station to get a crime reference number which she then faxed back to her insurance company. The police were going to check cctv footage of the incident but they never did and now its been over three months, the footage has been destroyed.

Meanwhile, the other driver's insurance company got in touch with my mum saying that the accident was my mum's fault, the other driver claims that my mum was on her mobile phone when it happened or she was eating food. Therefore her insurance should pay for damages to both vehicles.

The other insurance contacted the witness and got a statement but they're not happy with the witness statement because its not detailed enough and want to take it to court!!

My mum's insurance company aren't being very helpful because the car still hasn't been repaired. they are saying the repairs will have to come out of her fully comp insurance and she will have to pay an excess of £400 (cost to repair damage is £2,000). This means she will lose her 8 years no claims and her premium will go up. They haven't gone back to the other insurance company and asked them to contact the witness again for a more detailed statement, and they're asking my mum to do all the ringing around to the repairs company re fixing the car. Surely this isn't right?!

It all seems very unfair, I don't understand why the other insurance company are happy for this to go to court when the other driver
a) parked in a spot where they should not have been
b) refused to give any contact details at the scene of the accident.

If my mum has fully comp, surely she has paid for them to be sorting this out for her??

I'm going to write a letter of complaint to her insurance company about the way they are dealing with this because its completely unfair.

I would really appreciate any advice on this as I've never been in this sort of situation myself.

BIG THANKS!

cogito

You mean that your mother has been running around in a courtesy car for the last 4 months? I hope it's not a credit hire agreement.

If the other insurers are disputing liability, the only way your mother will get her car repaired is to pay for it herself or get her own insurers to do so. The excess is uninsured so her insurers won't pay it, however unfair this may seem.

Regarding the witness statement, it's up to your mother to prove that the other driver was at fault rather than the other way round so if the statement isn't sufficiently detailed, take the matter into your own hands and go see the witness and get a detailed statement which specifically puts the blame on the other side. This should enable mother to recover her excess and thus protect her no claim bonus.

Anihilator

Whilst the driver opening the door should have looked your mother should also have been driving at sufficient conditions to stop if required.

I suspect that this could well go down as a split liability I am afraid.

As for the insurers. At the moment your mother isnt claiming off them therefore I dont feel they have any obligation to do much. Did your mother get legal protection to claim on?

I also agree with the above. If your mother has been running around in a hire car for 2 months she should be worried.

mattymoo

Opening a door in to path of an oncoming vehicle was always regarded in the same way as rear end shunts. The person opening the door is at fault for not having checked it was safe to do so.

I'm surprised that nobody has jumped on the part where the other person says your mum was eating or on the phone. If they were aware that the driver of a passing vehicle was eating, why on earth did they open the car door into their path since they clearly knew they were there?

You need to get the car repaired. Let her insurers do this for her. Her NCD will drop from around 65% (most insurers stop counting at 5 yrs) down to around 50% - the actual scale should be in her policy book. Pay the repair excess.

Then pursue the other insurers for the excess and any other out of pocket expenses. Use legal expenses cover if she had this. If not, consider using the small claims procedure to pursue this in court. Note, you can only go to court once the loss is incurred, hence the need to get the repairs done.

dacouch

Matt opening a door is not always 100% the door openers fault, it can go 50-50 or a similar share of liability.

mattymoo

dacouch wrote: »

Matt opening a door is not always 100% the door openers fault, it can go 50-50 or a similar share of liability.

I disagree Dacouch (and that doesn't happen often).

The OP's mother had right of way along the road.
The other driver opened their door without warning leaving her with no chance to react. When you open your door you have a duty of care to make sure it will not impact on other motorists, cyclists or pedestrians if opening on the pavement side.

I used to deal with this stuff in the late 80's and can never remember arguing for a split liability outcome. My employers at the time (Royal / RSA) would settle on the basis the door opener was at fault.

Unfortunately I cannot back this up with case law. The one that keeps cropping up is Brown V Roberts 1965 but that is a technical dispute as to the legal status of the passenger that opened the door.

dacouch

I was not stating in relation to the OP simply in general, it is not always the case that opening the car door means you are always going to be at fault.

I've seen cases where someone has pulled up at the side of the road and opened the door and split liability was decided as the 3rd party should have anticipated the possibility of the door opening and allowed more room.

You also have the matter of car doors being opened in petrol forecourts, it could be a child opening the door or an adult, the other driver would be expected to excercise more caution in these circumstances.

I was not disagreeing, simply pointing out there can be odd occassions where there may be a split liability with car does being opened

guardian_girl

Thank you all for responding.

Just read through policy documents again:
- courtesy car okay because her car has not been repaired yet
- no legal protection was purchased with insurance

One of the reasons why the car has not been repaired yet is because the insurance company felt the quote that was given by the repair company was too much. They have received another quote from a different company which they are happy with. They will come to collect the courtesy car and the new repair company will give my mum a different courtesy car. Policy document states "your entitlement to a replacement car will end when your car has been repaired" so I'm assuming there is no reason to be concerned about this.

What I don't understand is why the other insurance company want to persist with a court case when their client was parked in a no parking zone on a narrow and busy high street.

I can accept the door opening liability going 50/50 though I wouldn't necessarily agree with it in very case. When she was driving well under 30 mph on a and the other driver opened the door very suddenly whilst parked on a zig zag line, how can they claim my mum should have enough time to react?

Mattymoo, thanks for pointing out the bit about eating food. The story changed: initially the other driver claimed my mum was talking on her mobile phone, then weeks later they said she was eating food. I agree, if you think another driver is not concentrating because they are distracted, why would you risk opening the door?

Also she refused to give her contact and insurance details at the scene - that's illegal isn't it?

Looks like we will pay the excess and get the car repaired. If the other insurance company want to take it to court, we'll let them. Surely when they see the other driver was parked in a no parking zone and see how the story changed of what my mum was doing when the accident happened, they will see it wasn't really all her fault.

Only other issue we face is her insurance will need renewing in February next month, we're not going with the same company so the premium will be a lot higher. If it does go to court and we win, will her premium be dropped with the new insurer?

mattymoo

Guardian Girl - while I previously thought that you would be found not liable, a recent court case has now decided that liability may go against you.

This is how the case was reported in the press. http://www.buxtonadvertiser.co.uk/news/Juggernaut-wrecks-life.5934054.jp

The case is: Andrew Howe v (1) Wayne Houlton (2) Marshall Barry Ltd (3) Norwich Union Insurance Ltd (2009)

This is how the case is being reported in the legal trade.
http://www.blm-law.com/default.aspx?appid=2301&news=7095

The case is almost an identical fit and is likely to be relied on by the other side to determine liability in your case.

dacouch

Thanks Matty!

There is a very small chance other insurer may also argue that you were overtaking in a zig zag zone.

Parking illegally does not mean that they are totally at fault.

If you want to assist your Insurer sending them a few photos of the area of the accident eg of the road, the view, road markings and signs can help them