Please help find who's fault is this (dash cam video)



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highwaystar
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by: highwaystar on
Fri Feb 27, 2015 12:02 pm

I think its now clear that you don't want to accept any fault whatsoever, no matter what the law says (or is silent on) or what any of us tell you. As previously mentioned, you advanced through the intersection when it wasn't clear. Forget about the car you hit----the red truck is right in front of you making a left and yet you're already accelerating through!!!! So, even if they can establish that the other driver should have stopped at the amber light and not been in the intersection lawfully, you ALSO weren't lawfully in the intersection since you failed to yield to traffic as per 144(8). Thus, at best, I think you'll get a 50-50 fault determination. At worst, the judge reverts to case law analysis and determines that 'but for' you accelerating through the intersection, the accident would NOT have happened----after all, she was already in the intersection. What if it was an animal in the middle of the street----you'd agree that would mean YOU are at fault correct? So, why do you rationalize things differently with a car. After all, you had every possibility to stop and avoid the accident---but didn't. You 'caused' the accident---at common law. You should count yourself lucky you didn't plow in to the red truck as well.


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by: vahank on
Fri Feb 27, 2015 12:12 pm

I just mentioned Fault Determination Rules. Generally I accept that both of us at fault and need to be careful. What I care is the legal stuff. I'm sure there is no place for self interpretation of law. I maybe wrong. I can't wait a response from insurance company.

In case of animal my driving teacher told me before that if you see animal, you shouldn't put animal safety first.

I had possibility to stop, agree and it would not happen. But if she didn't jump on yellow light, that wouldn't happen. I mean both of them is right. Anyway the 'Fault determination rules' defines who's fault is it.




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by: vahank on
Fri Feb 27, 2015 8:48 pm

I'm sorry for any misunderstanding. This was supposed to be discussion and it should be ok to have different opinions. There is no point to go into details with you, because each of us has his own point of view. And I accept that I can be wrong.

I highly appreciate your time and help.


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by: argyll on
Sat Feb 28, 2015 4:44 am

I'm afraid I have to disagree with the consensus. Vehicles clear intersections by turning because they have entered it waiting to turn. It makes no sense to me to have vehicles turn in front of you and then move through the intersection well after the light is red as did the vehicle that is struck.
Former Ontario Police Officer. Advice will become less relevant as the time goes by !


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highwaystar
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by: highwaystar on
Sat Feb 28, 2015 9:53 am

Argyll's point illustrates the real dilemma with this scenario. I agree that perhaps the first vehicle making the left needs to be in the intersection (i.e. to pull up to see the live lanes if cars are blocking his view), but the red pickup was in the wrong. He should have waited at the stop bar and only proceeded in to intersection once it was his turn and the intersection was clear. Unfortunately, people crowd the intersection trying to beat the amber light to make a left turn.

This is why OP's situation is much more complicated that perhaps he understands. After all, there are several potential HTA offences at play: 1) by him; 2) by the vehicle struck; and 3) by the red truck in the intersection. The fault rules do not take in to account all those factors and therefore, do not answer the fault determination questions fully. If anything, he may get lucky with a 50-50 determination since the insurers will likely rely upon rule 15(3): where it cannot be established whether the driver of either automobile failed to obey a traffic signal, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.

Here's where the legal problem arises--CAN they establish an automobile failed to obey a traffic signal---certainly the red truck did (but he's not involved), the caravan involved in the collision MAY have failed to obey the amber but that's not definitive, and then there's OP. He failed to yield at the intersection, but did he 'fail to obey a traffic signal' when his light was green? From a legal perspective, there could be 2 arguments to that. On one side, it can be argued that section 144 is a complete section that deals with traffic control signals---and section 144(8) (fail to yield) is part of the elements to obeying a traffic signal. Thus, even if you follow 144(12) and can proceed on the green light, another element is subsection 8 of the same section that ALSO requires you to yield. The flip side to the argument is that each action is separate and, at least for the fault determination rules, he IS obeying the traffic signal (i.e. proceeding when on a green)---even though he failed to yield (but that's not part of the 'traffic signal' rules). I know its confusing, but hopefully I've made it clear enough.

That is why I repeatedly state the same thing-----this is a very difficult situation to properly assess. I would be VERY surprised if Op was held to be at no-fault. More than likely, the insurers will agree to just use the fault rules and go 50-50 (so as to avoid going to court). However, if this claim was for much higher amounts----undoubtely the courts would have to assess it all based upon the rules of tort law and factor in such concepts as 'forseeability' and conduct a 'causation' analysis---primarily using the 'but for' test. That's where OP could see his biggest issue.

After all, 'but for' OP proceeding through the intersection (when he knew or ought to have known) the intersection wasn't clear, the accident would not have occurred. Had he simply waited, the other vehicles would have been able to finalize their movements (even though they may have entered the intersection unlawfully). So, that's where OP seems to be naive. He seems to believe that because the caravan that collides with him disobeyed the amber (or failed to stop for the red) that he is absolved of liability----he likely will not be because that's a difficult determination to make based upon the video.

It would be wonderful if the fault determination rules answered everything---but they simply can't include all possible scenarios. When they don't, the fall back system is tort law analysis by the courts.

I think the debate rests upon some folks only analyzing this scenario based upon traffic offences that may have occurred. However, that doesn't necessarily translate into tort liability. After all, it appears that none of the parties is entirely with 'clean hands'. The court would therefore need to go deeper in to its analysis. If that happens, I think the court will likely go 60-50 to 75-25 against the OP----because no matter how you cut it----had he not proceeded through the intersection when he knew it wasn't clear, all of the losses could have been avoided.

Had there been a group of kids in the middle of the intersection, I think a lot of people would be able to see the legal concepts at play. Yes, the kids should not have been in the intersection, but if OP didn't proceed (when he had full opportunity to not do so) none of the losses would have occurred (i.e. the 'but for' test).

As some have said, this is a wonderful academic scenario and much more complicated than what initially appears. However, from a practical perspective, I think Op will be very lucky if the insurers agree the other driver is 100% at fault (for failing to obey the amber). More than likely, they won't be able to agree and will default back down to the 50-50 rule of 15(3).


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by: vahank on
Sat Feb 28, 2015 10:25 am

If they pay more attention to the video, it is possible to determine that the other vehicle entered the intersection on the yellow light from stopped position. http://i60.tinypic.com/w9hdfa.jpg

People on the intersection - I guess neither the crossover, red truck or me will move. But pedestrians crossing the road, that's a real danger which cause the driver of crossover.

I guess the legal side will rely on determining if she crossed the amber light or not.


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by: highwaystar on
Sat Feb 28, 2015 10:37 am

But, you seem to always forget about YOU in the equation!!!! The fault determination rules don't explain what happens when BOTH parties disobey the traffic signal. They DO make provision when it can't be determined if either party disobeyed the signal----(that's section 15(3))---50-50 fault.

But, in this scenario, it may very well be that they decide only YOU disobeyed the signal (by not failing to yield) and her action can't be definitely determined. In that option, you'd be 100% at fault (based upon the fault rules). The flip side is that they decide only SHE disobeyed the signal (in that case she's 100% at fault). But, if both of you are deemed to have disobeyed the signal then the fault rules are silent (and the court//case law rules) kick in. That's a WHOLE different ball-game.

You can't claim that because she disobeyed the signal first that she's 100% at fault. On the contrary (and what a court would likely hold if they conduct a causation analysis), had you not disobeyed the signal after her, then the accident would not have occurred.

This summarizes the scenario as best as possible. I think you're looking at the video with wishful thinking and only looking at what SHE did or didn't do.


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by: iFly55 on
Sat Feb 28, 2015 11:38 am

@highwaystar thank you for your input into this discussion, it's been very helpful.

I thought they only used the Superior Courts (judge/jury) if one of the parties intended to "tort" sue the other for loss/damages (health, work, psych etc); isn't the threshold $30,000?

The damage at most to each vehicle appears to be <$3000.

Or do the insurance companies go to small claims to settle who's responsible for the damages? Seems like it would cost them more in legal fees for the damage. But I guess that's all recovered with increased monthly premiums.

Either way, i'm very interested to see how the insurance will assign fault.




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by: vahank on
Sat Feb 28, 2015 1:16 pm

When police usually send a traffic ticket? They didn't tell me anything when I was reporting collision.

And what about insurance company. How long does it take and how they notify? My insurance agent, doesn't respond to my emails and phones for already 2 days. I guess she is busy. I want to know when to call her next time.


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highwaystar
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by: highwaystar on
Sat Feb 28, 2015 3:47 pm

iFly55 wrote:@highwaystar thank you for your input into this discussion, it's been very helpful.
Thanks iFly55.

I'll try to answer the question of what happens if you disagree with the fault determination.

As per section 263(4) of the Insurance Act, the insured must sue the insurer. That is consistent with all Ontario auto insurance policies. You can also see that under section 6.7.3 of the OAP1 for the typical language used in most policies.

Unlike statutory benefits which has alternative dispute measures in place to resolve disagreements (i.e. mediation/arbitration), that option doesn't exist for property damage disagreements, nor fault determination disagreements.

By the way, the Financial Services Commission of Ontario also confirms what I was saying about how the courts must get involved when the Fault Determination Rules can't help determine fault. If you go to the section titled "How does your insurance company assess fault?", you see they state
"Fault is allocated to each driver based on which accident scenario most closely resembles the accident. If the accident is not described by any of the scenarios, then fault is allocated according to the ordinary rules of negligence law."
Ok---so that's all nice and academic. In practice though, here's usually what happens:

1) If you disagree with the fault determination, you escalate the claim to the insurer's complaint officer. They will review the file and let you know if they agree with your new information to change their opinion.

2) If you still disagree, then you sue them----if its under $25K you do it in small claims court. If higher, you file it in Superior court.

3) Most insurers will then seriously review the incident as the court date approaches. Most cases settle before court, but the insurers really do wait it out---sometimes, the settlement is mere minutes before the judge walks in!

Keep in mind that most insurers will simply agree to split the cost 50-50 when they can't determine fault with certainty. They won't go to court. Its a business decision on their end. They figure---are you really going to spend all that money and time disputing them over a couple thousand dollars? Probably not. Besides, its much better for them to have an industry-wide policy like that (of splitting liability) because the few that DO proceed to court and win is no where near those that simply accept their determination. Plus, both insurers win in a 50-50 situation because they'll just increase premiums to make up for any losses!

Now, if this was a case where 2 major fuel transport trucks caused enormous damage to a highway or bridge, you can be quite certain the insurers would be disputing one another. After all, its all about THEM and their pocket books---not the insured person! :)

So, bottom line: while the stuff I'm talking about is the legal information that individuals like OP should be aware of, in many cases it simply is not worth disputing things because it'll cost more to do so. Its yet another example of what may be legal and what is likely to really happen.


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by: bend on
Sat Feb 28, 2015 4:19 pm

vahank wrote:If they pay more attention to the video, it is possible to determine that the other vehicle entered the intersection on the yellow light from stopped position. http://i60.tinypic.com/w9hdfa.jpg
It certainly isn't possible to determine the other vehicle was stopped behind the line while the light was yellow. You have a single frame shot where the view of the vehicle is obstructed and you can barely make out the rear end. You can't see the rest of the vehicle, where the line is, where the crosswalk is, etc.

The line on that particular intersection of King and Dufferin runs directly under the control signal and straight with the pole. Considering the angle, it looks like the vehicle is definitely over the line and crosswalk, possibly with its front end in the intersection while the light turns yellow. The drivers on the opposite side turn as they seems unaware the vehicle behind the turning minivan has been waiting to continue straight and not turn, leaving the future accident vehicle stuck in the intersection.

It's an interesting thread. I'd actually hope you'll post a follow up. That being said, if you ignore everything else going on, your theory that the vehicle ran a yellow light while already stopped is inconclusive. Whether or not that vehicle should have waited for the driver in front clear before entering and the other 100 things going on in the video is another story.


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by: vahank on
Sat Feb 28, 2015 8:56 pm

Thanks highwaystar,

Very useful. Not sure if I'll dispute. I'll accept even 50-50 case, because I understand that I could avoid the accident if I waited intersection to get completely clear.

In case of 100-0 in her favor will be weird, I'll escalate, but not sure if I want to go with a process with full of headaches.

How much will hike insurance rates? Can you estimate? Currently I pay $380 a month and I have clean records. I understand nobody can give an estimate except insurer, but I really don't have an idea if it will be 50, 100, 200 more a month. Just any prediction will be appreciated.


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