Failure To Yield Right Of Way

[Baudric]

My daughter was driving along a two way street when a vehicle suddenly pulled in out in front of her from a side street causing her to hit him. There were no traffic devices or signs on the road my daughter was traveling while the other vehicle had a STOP sign. Upon her reporting this and filing a claim for damages with this drivers Ins. a decision of 75% / 25% was made by them. How is this possible, their driver failed to yield right of way. When I questioned them about this they stated the had to as NYS had comparative negligence laws. Does this make sense she was driving under the speed limit and this driver pulls out of a side street ignoring a stop sign.

Thank you for your input

[gervasio]

John,

First of all, I hope your daughter is OK and was not hurt.

Comparative negligence laws can be quite complex ... and often seem very unfair.

Presently, thirteen(13) states follow a pure comparative negligence system:  Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.  In a pure comparative negligence system, a judge or jury assigns a percentage of fault to each responsible party and then apportions the damage award accordingly.  Using this system, an injured person may recover his or her damages even if the injured person was 99% at fault in causing the injury, with those damages reduced by his or her portion of the fault.(Re-printed from "The Injury Lawyer Directory - http://www.the-injury-lawyer-directory.com/negligence.html)

The problem here is that the other insurance company has made an ARBITRARY LEGAL determination that they did not have the authority to do. A true apportionment could only be made by a court of appropriate jurisdiction. The biggest obstacle you would have to get over is the fact that the other car was in the intersection first, even though your daughter had the right-of-way, and she struck them. I know it sucks but that would be an issue that would be a factor in apportionment.

I would suggest a carefully crafted letter sent to the other insurance company pointing out that they did not have the legal authority to make an apportionment and that in a spirit of compromise, you would accept no more than a 5% level(or lower) in exchange for a full and final release. I would also suggest that you seek out legal counsel there in NY prior to doing that since you would be signing away future actions. If you have turned this in to your Carrier as well, you may want to get them to take the lead in addressing this.

Hope this helps clarify things a little.

Kevin Hromas - JD, EGA, RPA, PLCS, Appraiser/Umpire