On May 22, 8:29 am, mswlogo <geomi...@gmail.com> wrote:
> Need advice for my wifes court hearing.
I am not a MA lawyer, I am not familiar with the concept of a "Merit hike hearing" which I'm guessing has to do with legal regulation of MA insurance rate increases after a crash, and I'm not here to offer anything approaching advice, just to comment. Hopefully you might pick up on something which will keep your wife from saying something that might hurt her rather than help her at the hearing. It's up to her to determine which testimony of hers may fall in each of those categories. Or she could consult a local MA lawyer and get real advice, as well as representation at the hearing, to keep her from saying anything harmful to her out of her sheer ignorance of the legal requirements.
> She was in a small pile up (3rd out of 4) caused by the front two
> hitting hard.
I assume you mean it was initially caused by car #2 hitting car #1 hard. I'm presuming car #1 didn't hit anything but simply slowed down or came to a stop, as he was supposed to do, to _avoid_ hitting anything. Unless car #1 lost control and slammed into a guardrail, or cut in front of everybody else at a relatively high speed then crammed on his brakes, he is the only innocent victim in this scenario. Everyone else involved was following too closely and going too fast for conditions.
> She was hit in rear but no damage small damage
> ($1000.00) to the front.
Which is probably enough damage to her own car to put her over the threshold permitting the insurer to ask for a rate increase, or you wouldn't be in this situation. Here in MD, the insurers generally raise your rates if you have an at-fault wreck where they have to pay out more than $500 (on top of your deductible).
> It was in heavy traffic, bad weather and dark.
All of which means she should have been going even slower than usual and leaving more room than usual between her car and the car in front of her.
> She just wants to ask the Merit hike be waived.
As mentioned, I'm not familiar with that procedure and can't comment one way or the other on what facts she would legally have to show at the hearing to be entitled to have the rate hike be waived. Have you read the pertinent statute or regulation to see what factors the court will look at to determine whether the insurer's request for a rate hike is initially justified, and what your wife has to prove, at a minimum, for the court to be authorized to accept her evidence and waive the hike (even if it were initially permitted)?
In other words, what are the elements of her prima facie case (the bare minimum that has to be proven to allow the court to rule in her favor)? Of course, if she actually wants to WIN, she will almost certainly have to put on other evidence that will tip the scales in her favor and that will go far _beyond_ putting on a mere prima facie case, since she (as complainant) probably has the burden of proof in this case to persuade the judge she is right, and if the scales of justice are evenly balanced, the insurer will win and be allowed to raise her rates.
How are we supposed to help you analyze the situation if we don't know what those factors are, and how they weigh in the balance? Tip #1 is, she should be very familiar with the legal requirements for what has to be proven, before she goes in and just says whatever sounds good. Because doing that may hurt more than it helps, or just be irrelevant, if the rest of your post is any indication of what she planned to say.
> She has perfect driving record for 32 years and does not tailgate.
Her past record is almost surely not an issue one way or the other. What she did in this particular accident is probably all that matters.
> But she could have avoided it if she hung back further but nobody does
> in these heavy traffic situations and she just kept the same distance
> everyone else did.
Lotsa luck, if she goes into court and says that. "Because everyone else is doing it" is not a legal excuse. All that means is, _everyone_ was driving too fast for conditions and following too closely for conditions. And yes, most people get away with it, but she was one of the unlucky ones who actually got damaged as a result and therefore got called to account for her decisions.
The "she could have avoided it" bon mot is the real killer. I can just see the judge checking off "no dice" on his notepad the instant she says that. Nothing like conceding the essential fact of the other side's case.
And even if a court accepts the "everyone did it" argument as a potentially valid one (unlikely), the insurer probably would dispute that what she did is exactly what "everyone else did". The guy behind her was following far enough back, and going slow enough (maybe because he was looking farther ahead in time, and saw trouble brewing with the 1st and 2nd cars in line) that even though his car made contact with your wife's, no damage resulted to hsi front end or her car's rear. The guy behind _him_, and everyone else in line behind that, was in fact going slow enough and following far enough behind so that they didn't impact the pile-up at all. Otherwise, we'd be looking at a domino effect extending all the way to the state line (where, presumably, everyone has to at least stop and pick up a MA toll ticket). Out of the dozens, maybe hundreds of cars on the turnpike and approaching that exit on that night in those conditions, your wife and 2 others were the only ones who hit something, and she and 1 other were the only ones who caused any damage, to themselves or others. That is a far cry from "everybody" losing control of their vehicle and not being able to stop in time.
> It was on an exit ramp at slow speed (10mph). Mass Pike.
10 mph was obviously too fast for conditions. Was it icy? Foggy? What exactly did you mean by "bad weather"?
> 2nd car driver was a new driver on unfamiliar roads in a borrowed car.
Irrelevant what the 2nd car did. Your wife is the one who ran into him, and if she was letting him set the pace which was too fast for conditions, she was abdicating her own responsibility to drive her _own_ car within its own, and her own, safe capabilities under all the circumstances. That amounts to the argument, "Well, he jumped off the bridge, so I thought it was safe to do so."
> She drives it daily for past 5 years.
Irrelevant, or possibly harmful, since it means she should have been well aware if there were any peculiarities to this particular exit (decreasing radius curve, incorrectly banked, shorter than usual distance to the tollbooth, etc.) and thus she cannot claim surprise or lack of proper warnings if in fact one of those roadway factors had anything to do with it.
> It really was not her fault even though she could have avoided it.
That is an oxymoron. IF she could have avoided it by driving reasonably, then it WAS her fault to collide with someone. She is innocent of fault only if nothing she could have reasonably done would have avoided the crash.
And that's not an all-or-nothing determination, AFAIK. MA applies the rule of "comparative" negligence under which both, or all parties may turn out to be in some degree responsible for causing a crash. She's not completely at fault, and your evidence does tend to show that, but she's not completely free from fault either.
> Looking for tips on what to say or not say.
Tell the truth. But don't blurt out anything stupid you don't have to say. If in doubt how to do both of those, get a lawyer. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
No comments:
Post a Comment