Texting Causes Accident...
I believe my 16 year old daughter was hit by a driver who was texting while driving. My daughter was exiting a parking lot, turning left & was hit by a 23 year old driver in the front left quarter panel. I had just exited the parking lot before my daughter & witnessed that the other vehicle was at a good distance away, approximately 12 car lengths. There appeared ample clearance for my daughter to exit considering that the speed limit was only 35mph.
The severe inertia of the impact threw my daughter's car across the road, up a curb, past a sidewalk & through a row of hedges about 40" in height. She landed in a front lawn straddling the hedges. Although the driver who hit my daughter had obvious right of way, I have strong reasons to suspect that she was not operating her vehicle in a prudent manner, possibly speeding & also visually distracted.
The insurance company swiftly assigned fault to my daughter without even investigating whether or not the driver was texting while driving as per my request.
Damage to other driver's car seemed significant, with full frontal impact. Our out of pocket costs to repair my daughter's vehicle are near $2,000. She is undergoing medical treatment for lateral whiplash. We will soon have a determination if she sustained any soft tissue damage to her shoulder which along with her head, smashed against her car door upon impact. We also anticipate significant increased charges for her insurance coverage over the next 3 years.
Despite the insurance company's refusal to investigate whether the other driver was texting, is there any way that I can have satisfaction to prove or disprove my suspicion? This is not merely a hunch, I witnessed her speed & lack of prudence and saw the impact in my rear view mirror. If indeed she was texting, does this negate right of way?
The laws on texting while driving & proof thereof are somewhat vague & burden of proof seems solely on me. Therefore, where do I begin to investigate?
I was told that only in cases of severe loss of function or loss of life does the law pursue whether texting was involved. If we choose to pursue this via small claims court here in PA, how do I generate a request to subpoena her phone records to substantiate whether she was texting at the time of the accident?
Bottom line is that I witnessed that the other driver was traveling at an excessive speed and also that she made little to no attempt to avoid the accident, supporting the fact that she was not visually engaged with the roadway.
I appreciate whatever advise you can lend.
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ANSWER for "Texting While Driving Accident...":
We certainly hope your daughter’s recovery is swift. Regrettably most insurance policies have in the Declarations Page a notice to its policyholders of the company’s right to assume the liability aspect of a collision in which their insured participated.
They can, therefore, decide to “settle the case out” in the manner in which their legal staff deem prudent. Although it is arguable whether insurance companies have suficient resources to litigate more cases on behalf of their policyholders, the fact remains that doing so would have a devastating effect on an already overburdened court system.
You did not mention whether your daughter was ticketed for “Failing to yield the right of way,” or similar traffic infraction, or whether the other driver was cited by the police for any traffic infraction as well. Certainly if the other driver was ticketed by the police for “Failing to Control Speed,” or similar violation the insurance company’s decision to settle might not have occurred as swiftly as you indicate it did.
If you decide to file suit in Small Claims Court it is highly probably the other party’s insurance company’s attorneys will file a Motion to Dismiss or Motion for Summary Judgment alleging the same facts have already been settled and therefore there remains no legal cause of action to be litigated.
If you wanted to contest those actions and because your daughter is a minor you could "represent" her in court by filing legal motions contesting the opposing party's motions.
There is no doubt texting while driving, especially among our young people is becoming more dangerous all the time. It would therefore not be surprising if you were exactly right about your suspicions.
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.
Best of luck,
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