Some Advice On 50/50 Split Liability Needed

whizzkid001

Briefly, I had a collision back in August in a petrol station. As I was very slowly pulling up to the petrol pump on my right, a van driver flung his door open without looking and walloped my passenger side door. There was no question he was in the wrong, he admitted it at the time and I duly put in a claim (fully comp policy).

Nearly 5 months later, after my car had been long repaired and I'd heard no more having just assumed it was all wrapped up, bizarrely I got a call out of the blue asking me to send them a diagram of the accident! I expressed surprise that it hadn't been long settled and asked why it was still ongoing, all they said was that he'd obviously changed his mind and was now fighting the claim!

Ok, so now I've just received a letter proposing that in the absence of independent witnesses, they propose to settle on a 50/50 split liability. They go on to say they are of the opinion that if the matter went to court, that would be the likely outcome. Also, they claim that there is a possibility that the case could be settled 100% in the third party's favour!

I am absolutely fuming! What do peeps suggest I do - agree or refuse? The guy was very clearly in the wrong, he'd admitted it in the beginning so surely that would go against him if it ever went to court. I just don't see why I should accept any blame, affecting my premium and no claims, for an accident that was never my fault. Aviva were way too slow in checking with the garage whether they might have had cctv of it, so long that the garage told me it would have been long wiped.

I am not happy...

katylou6180

50/50 liability will still load your premium as fault, you dont really have a lot to lose by fighting as insurers when loading premiums (in my exp and ive worked for a few) don't usually check the costs of a claim, so therefore it will show as a fault claim whether it goes 100% to the tp or 50/50- it's a risk but the risk is up to you, you have obv already sorted out the financial details.....how much would you be losing? thats what you have to weigh up as next yrs costs will go up whatever!

stevemarsh1976

Hi

sorry to hear about your issues, thought I would clarify a couple of points for you which may help you decide on a course of action, i apologise now as they probably arent what you wish to hear to be honest.

Firstly any admission of guilt at the scene of an accident is deemed inadmissable as it can be argued it was given under duress. It just wont even be allowed as part of a case in a court.

Secondly if its a case of your word against his then I am afraid there is little you can do. If and I am only saying if he is saying something like "my door was open and you drove into it" and obviously you say he flung his door open into your car, a judge sees only these 2 statements both of which are feasable with the damage caused he will have little option but to give 50/50.

Finally and your potential saving grace is have you contacted the petrol station as I beleive all petrol stations record there forcourts, it maybe too long has passed but if they still have the footage you can use this to show what happened. Ive certainly had clients in the past who have used station footage to prove accidents.

whizzkid001

stevemarsh1976 wrote: »

Hi

sorry to hear about your issues, thought I would clarify a couple of points for you which may help you decide on a course of action, i apologise now as they probably arent what you wish to hear to be honest.

Firstly any admission of guilt at the scene of an accident is deemed inadmissable as it can be argued it was given under duress. It just wont even be allowed as part of a case in a court.

Secondly if its a case of your word against his then I am afraid there is little you can do. If and I am only saying if he is saying something like "my door was open and you drove into it" and obviously you say he flung his door open into your car, a judge sees only these 2 statements both of which are feasable with the damage caused he will have little option but to give 50/50.

Finally and your potential saving grace is have you contacted the petrol station as I beleive all petrol stations record there forcourts, it maybe too long has passed but if they still have the footage you can use this to show what happened. Ive certainly had clients in the past who have used station footage to prove accidents.

I see what you're saying, regarding his changing his mind, but just to add a few pertinent facts into the story, which convince me I should not accept this, are the following:

1) I additionally informed Aviva right at the start of the claim, that if they deemed it necessary, I could obtain a statement from the girl serving in the garage who duly witnessed the collision. I also informed them that there was likely to be CCTV footage. But I was told that this was not necessary;

2) Almost four months had passed, during which I naturally assumed the claim had long been dealt with and finished. When they telephoned out of the blue several months later to ask for more details of the incident, including belatedly asking about potential witnesses and CCTV, I naturally expressed my surprise. When I asked why the claim had not already been settled, I was duly told that the 3rd party was now contesting the claim - having initially accepted it (therefore only changing his mind halfway through the claim, not at the beginning as assumed);

3) It was not appropriate that Aviva had then asked me to contact the garage where the incident occurred to try to obtain CCTV footage – this was their responsibility, not mine. As such, it was as a direct result of their delaying requesting this footage that by the time they asked me to obtain it, it transpired that the footage had long been wiped;

Seems to me that even if ordinarily a claim such as this might have been settled on a 50/50 basis, I believe Aviva were negligent both for not requesting and subsequently securing footage at the time it was available, also negligent for failing to obtain a witness statement from the girl serving at the time. Thus I believe they should bear the cost of the accident, as they have done, but without apportioning any blame to me.

Helen_J_3

This is typical of Aviva. If you've looked around this forum you might have notcied my predicaments with this excuse of an organisation. Someone insured by Aviva went into the back of my car in September and they STILL haven't sorted it. They are incompetent in every department.

Sorry I can't be much help to your problem!

stevemarsh1976

I certainly think you have a case of some sort, Aviva are not my favourite insurer at the moment both from a personal and proffessional point of view.

However looking forwards in order to help you get a resolution,

do the petrol station still have the footage ?
Does the girl still work there and can Aviva get a statement from her ?

Whilst I appreciate they should/could have been got at the time, fact is they wernt so to get moving in the right direction if you can get them now then great.

Alternitively do you have any legal insurance and if so is this sperate from Avivas legal insurance as you could speak to them to get some legal council on the matter.

Other than that struggling you will need to follow Aviva's complaints proceedures in order to escalate to the Ombudsman for you to look at

whizzkid001

stevemarsh1976 wrote: »

I certainly think you have a case of some sort, Aviva are not my favourite insurer at the moment both from a personal and proffessional point of view.

However looking forwards in order to help you get a resolution,

do the petrol station still have the footage ?
Does the girl still work there and can Aviva get a statement from her ?

Whilst I appreciate they should/could have been got at the time, fact is they wernt so to get moving in the right direction if you can get them now then great.

Alternitively do you have any legal insurance and if so is this sperate from Avivas legal insurance as you could speak to them to get some legal council on the matter.

Other than that struggling you will need to follow Aviva's complaints proceedures in order to escalate to the Ombudsman for you to look at

Well, I realised something was 'amiss' the minute they rang asking if I could obtain any cctv! I then went to the garage but was told that it had been wiped. Also the manager informed me that the girl whom I'd described that had witnessed it all, had since left. No joy there then.

Yes, I had legal protection cover. How does that work now then, I cancelled the policy 3 months ago so am not currently insured. Am I still covered as it relates to a period when I was insured?

stevemarsh1976

whizzkid001 wrote: »

Well, I realised something was 'amiss' the minute they rang asking if I could obtain any cctv! I then went to the garage but was told that it had been wiped. Also the manager informed me that the girl whom I'd described that had witnessed it all, had since left. No joy there then.

Yes, I had legal protection cover. How does that work now then, I cancelled the policy 3 months ago so am not currently insured. Am I still covered as it relates to a period when I was insured?

Oach

As for any insurance if you were covered at the time of the incident then yes

whizzkid001

Well, this is the letter I would propose sending initially anyway, as I only have a limited time to reject/accept - what do you think:

Please note that I am not agreeable to having the matter resolved on a 50/50 split liability. My reasons are as follows:

1. I informed you right at the beginning of the claim that the 3rd party had fully admitted blame for the incident;
2. I additionally informed you that if it was deemed necessary, I could obtain a statement from the girl serving in the garage who witnessed the collision. I also informed you that there was likely to be CCTV footage. I was told that this was not necessary;
3. Almost four months had passed, during which I naturally assumed the claim had long been dealt with and finished. When you telephoned out of the blue months later to ask for more details of the incident, including asking about witnesses and CCTV, I naturally expressed my surprise. When I asked why the claim had not been settled, I was duly told that the 3rd party was now contesting the claim;
4. it was not appropriate that Aviva had asked me to contact the garage where the incident occurred to try to obtain CCTV footage – this was your responsibility, not mine. As such, it was as a direct result of your delaying requesting this footage that by the time you asked me to obtain it, the footage had long been wiped;
5. it occurs to me that the 3rd party changing his mind mid-point through the claim, as opposed to the beginning, should at least give some indication as to his potential guilt, accordingly I do not agree that a court would necessarily ignore such a material fact when assessing blame;

Accordingly, for the reasons given above, I am resolutely against accepting this claim on the basis suggested. In my view, Aviva itself was negligent through failing to obtain material - which would have proved I was not at fault - either in a timely manner, or in fact at all.

Crazy_Jamie

stevemarsh1976 wrote: »

Firstly any admission of guilt at the scene of an accident is deemed inadmissable as it can be argued it was given under duress. It just wont even be allowed as part of a case in a court.

Wrong. Very little is inadmissible in civil claims in terms of evidence, and admissions at the scene of an accident are certainly admissible. The inevitable issue is proving the admission was given, which is difficult when it is one person's word against another. Essentially because one person will describe how the admission was made, and the other person will simply deny it. Without something else to back up the assertion, the person making it will therefore often run into issues. But suggesting that admissions at the scene of an accident are inadmissible as a matter of principle is simply incorrect.

stevemarsh1976 wrote:

Secondly if its a case of your word against his then I am afraid there is little you can do. If and I am only saying if he is saying something like "my door was open and you drove into it" and obviously you say he flung his door open into your car, a judge sees only these 2 statements both of which are feasable with the damage caused he will have little option but to give 50/50.

This is true in many cases, but in this case I would be digging a little deeper. Mainly because to my mind these two versions of events could be distinguished on the evidence. Specifically in two ways:

1. The damage caused to a vehicle when someone opens a car door on to it would be different to the damage caused when someone drives in to an open car door. For a start I would expect that the latter scenario would result in rather more damage to the car door itself then the first scenario. In addition, I would expect a dent to be caused when a car door opens onto another car, whilst a scrape is more likely with a slow moving vehicle striking the side of a car door.

2. In the latter scenario for the damage to be in the same place as the first scenario (I am assuming the side of the OP's car), the OP would also have to be moving diagonally away from the petrol pump that they were presumably trying to pull up alongside (otherwise the door would strike the front of the car), which again is inherently unlikely in that scenario.

Now this is by no means a cut and dry case, and insurers will often cut their losses and go 50/50 rather than fight something like this. But for me it is not simply a case of one person's word against another. I expect that evidence can be gathered here which would give the OP the edge. Still a risky thing to contest whichever way you spin it, but their are certainly prospects.