Legal Question in Insurance Law in New York

Re: Auto Accident Settlement

No, you're dealing with a smelly insurance company, and you should take them to court asap. Your case should not overlook the fact that she was exiting private property and entering the public right of way, so she had a duty to yield to traffic in the public right of way.

The statement that "in NYS, all parties are liable" is a classic example of insurance companies teaching their people to lie, cheat, steal and encourage others to do the same. "Comparative negligence" means that if the parties are equally to blame, then the injured party gets 50% of his/her damages. Based on the facts you related, this is 100% on the defendant. It will be especially helpful if you bring photographs of the scene and a map showing where the cars were at the time of impact. With any kind of luck, some part of your car will have been in the public right of way (which includes the sidewalk) at the time of impact, which brings up the rule that traffic on private property must yield to traffic in the public right of way.

Your witness is perfectly good. Yes, her statement is hearsay, but there are exceptions to the hearsay rule. In the old days, we would have said that the defendant's utterance that she was at fault is part of the res gestae ("race ges-tie") of the accident. Nowadays, it's called "excited utterance." The statement comes even though it is hearsay because the law thinks that a person does not have time to figure out a lie in the heat of the moment. And the law is right, too (at least for once) since many many people blurt out that the accident was their fault at the time.

Your other approach (and I would follow this as well) would be to contact the NYS Insurance Department and complain of the insurance company's unfair claims practice. Click http://www.ins.state.ny.us/complhow.htm

This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon unless and until an attorney-client relationship is entered into. Doing so would require signing an engagement letter and depositing a retainer to secure payment of legal fees.

Re: Auto Accident Settlement

If you are confident that the witness will stick to the story you could also tell the insurance company about the witness.

If that doesn't work then go to small claims court. You will have to refuse the 50 percent settlement, and sue for the entire amount.