Legal Question in Insurance Law in Massachusetts

My wife got into a wreck in the car back in July. Unfortunately, because of a clerical error by my stupid brother, our car was not insured at this time (there was a period of about 5 days when it was not insured). The wreck was clearly not my wife's fault (she was established in a rotary and the woman ran into the back side of us). However, the woman's story is that she was the one established in the rotary and my wife came into the rotary without yielding and hit her. The damage to the cars is inconclusive (you cannot determine whose story is correct by looking at the cars, because it was a rotary). We spoke to the insurance company who offered us a fifty-fifty (they pay 50% of our damage and we pay 50% of her damage) settlement over the phone but would not actually give us that in official writing (the letter thay sent had the 100% amount blacked out with a magic marker and had the 50% am,ount written in, though they are having a hard time admitting to this now). My wife did not want to pay half (of course, her damage was estimated to be much higher than ours, because Liberty Mutual estimated it). So, Liberty Mutual decided to send it to a collection agency. My questions are: waht are my rights in terms of this? In other words, can Liberty Mutual send it to a collection agency without a court determining who is at fault? What can the collection agency do to us? Also, should we take this to small claims court to try and get the money back for our car ($1,400 worth of damage)? Liberty Mutual is saying that we owe tham $3,100, if this figure is relevant for anything. We do have one thing to our advantage - my wife's sister was in the car and can verify that my wife was established in the rotary. However, Liberty Mutual will not count her because she is a "biased" witness. Will the court see her as a valid witness? The police came to the scene of the accident, but would not take notes or file a report and did not issue us a ticket for not having insurance. Please advise on the next steps.


Asked on 12/10/09, 7:19 pm

1 Answer from Attorneys
Roger Turgeon Turgeon & Associates

All a collection agency can do is threaten to file a lawsuit (small claims or District Court) on behalf of the other driver's insurance company. You don't "owe" anybody anything unless and until a court issues a judgment against you.

Your best bet is probably to file your own lawsuit against the other driver, in Small Claims Court (quicker and cheaper) or in District Court (better chance of a fair result--sometimes the Clerk-Magistrate hearing a Small Claims case can be a bit "arbitrary"). You probably have a better chance of a favorable result if you have an attorney on your side, but of course you have to consider whether the amount of money at stake is worth the attorney fees. Most lawyers will offer a free consult to give you a sense of how much they might be able to help, and at what cost.

The sister in the car as a witness definitely should help at least a bit, though the family relationship does allow the other side to argue she is biased. Still, if she comes across as really sincere, it will help you.

If you bring a suit, expect the other side to bring a counterclaim. If the finding is exactly 50/50, then the "math" the insurance company suggested is probably right--you each pay the other 1/2 of your respective repair costs. If your wife is anything less than 50% at fault, however, you will get the appropriate percentage of your repair costs from the other insurance company, and you will not owe the other guy anything. (Other way around, of course, if your wife is deemed anything more than 50% at fault.)

Read more
Answered on 12/16/09, 5:20 pm


Related Questions & Answers

More Insurance Law questions and answers in Massachusetts