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  1. #26
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    Quote Originally Posted by fizbiz View Post
    Driver took a left where at an intersection with a "NO LEFT TURN" sign. .... Fault is clear, and was admitted to officer and is in the report. There were two witnesses as well. ...... Do I file against the driver or the insurance company?
    Then you have a nice clean case. You file suit against the driver. His insurance company then steps in as his representative. Not that I'm encouraging you to pad the claim in any way, but be sure to claim ALL your damages, including the bike (at replacement cost), the cost of alternate transportation, any lost wages, any medical bills, and other incidentals. In most states the court fees are added automatically if you win, and in some states interest for the time until you get paid.

    In reality, your claimm is very small, so everyone is lucky that there was no injury, and the driver is very lucky he hit an honest person, and not someone who immediately claimed head or neck aches, and other nebulous injuries. Odds are that the insurance company won't want to appear, so you should get a call and offer of prompt settlement, before the court's answer date.
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    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

  2. #27
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    Quote Originally Posted by kalliergo View Post
    You file against the driver. The insurance company can support and assist him (if they bother), but they can't send lawyers to represent him in small claims court.
    This probably varies among the states. In New York, they're contractually obligated to represent the driver in any suit, and as a corporation cannot respond except with a lawyer. In NY some judges will waive the lawyer requirement for small family owned corporations, if an owner appears and asks because the cost of a lawyer is too high in comparison to the claim.

    Either way, the odds of a trial are very small. This will in all likelihood be settled before the trial or answer date. Insurance company lawyers charge upward of $300.00 per hour, so do the math and realize that they have little option but to settle promptly. The purpose of the suit is to start a clock, and nudge them to action.
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    An ounce of diagnosis is worth a pound of cure.

    “Never argue with an idiot. He will only bring you down to his level and beat you with experience.”, George Carlin

    “One accurate measurement is worth a thousand expert opinions” - Adm Grace Murray Hopper - USN

    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

  3. #28
    Senior Member kalliergo's Avatar
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    FB is right. Including his correction of my error. I've been doing business on the left coast for such a long time, without forays back east, that I totally forgot about arcane setups like NY's [I love New York, truly, but seriously, man, they're at least 70 years behind in Albany. . . ] In most places, including California, you won't have to worry about anyone bringing lawyers. But check your local law and process. Usually, the folks at small claims court are helpful, have brochures, etc.

    OP, you should be compensated for your loss and I think it's likely that you will be. If that doesn't happen, I'd definitely sign a Change.org petition for you.

    P.S. Why don't we have a local cycling lawyer or at least cycling-law knowledgeable peer counselor in every community?


    Quote Originally Posted by FBinNY View Post
    This probably varies among the states. In New York, they're contractually obligated to represent the driver in any suit, and as a corporation cannot respond except with a lawyer. In NY some judges will waive the lawyer requirement for small family owned corporations, if an owner appears and asks because the cost of a lawyer is too high in comparison to the claim.

    Either way, the odds of a trial are very small. This will in all likelihood be settled before the trial or answer date. Insurance company lawyers charge upward of $300.00 per hour, so do the math and realize that they have little option but to settle promptly. The purpose of the suit is to start a clock, and nudge them to action.
    "What if we fail to stop the erosion of cities by automobiles?. . . In that case, we Americans will hardly need to ponder a mystery that has troubled men for millennia: What is the purpose of life? For us, the answer will be clear, established and for all practical purposes indisputable: The purpose of life is to produce and consume automobiles."

    ~Jane Jacobs, The Death and Life of Great American Cities

  4. #29
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    BTW- Many, if not most, small claims judges take on a bit of the lawyers role prodding things along, and not letting lawyers interject too many procedural issues. They try to get the short version of the facts, and base their rulings on that rather than legal maneuvering.

    If your case should come to trial, treat it like a good steak. It's a good case and doesn't need to be dressed up. But come prepared, bring the police report, photos, of the damaged bike, and the intersection in question, the original receipt for the bike and any improvements you made to it, a workup bill for a current replacement from a local shop, maybe 2 shops with catalog pages, or downloaded internet pages to support your claim for the value, and receipts for any other expenses.

    Receipts are critical, since it's your burden to support the claim. Other than keep your story short and on point, as in "he made an illegal left turn with no warning, and I was already so close that there was no chance to turn or stop in time to avoid a crash".
    Last edited by FBinNY; 05-22-13 at 09:19 PM.
    FB
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    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

  5. #30
    Cycle Year Round CB HI's Avatar
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    Quote Originally Posted by FBinNY View Post
    BTW- Many, if not most, small claims judges take on a bit of the lawyers role prodding things along, and not letting lawyers interject too many procedural issues. They try to get the short version of the facts, and base their rulings on that rather than legal maneuvering.
    What small claims court do you know that lets lawyers into the proceedings?
    Land of the Free, Because of the Brave.

  6. #31
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    Quote Originally Posted by CB HI View Post
    What small claims court do you know that lets lawyers into the proceedings?
    I can't speak for all 50 states, but since I live in NY and have been sued in small claims court, I can state with authority that NYS requires that corporations be represented by attorneys in small claims court. In my case I was able to prevail on the judge to allow me to appear pro se, since I was the sole share holder, and the claim was less than what 2 hours of an attorney's time would have cost.

    In the one case where I was the plaintiff, the case was settled before trial, so I don't know what would have happened otherwise.
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    “Never argue with an idiot. He will only bring you down to his level and beat you with experience.”, George Carlin

    “One accurate measurement is worth a thousand expert opinions” - Adm Grace Murray Hopper - USN

    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

  7. #32
    Senior Member kalliergo's Avatar
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    Quote Originally Posted by CB HI View Post
    What small claims court do you know that lets lawyers into the proceedings?
    In New York, it's not uncommon. He's right. I forgot.
    "What if we fail to stop the erosion of cities by automobiles?. . . In that case, we Americans will hardly need to ponder a mystery that has troubled men for millennia: What is the purpose of life? For us, the answer will be clear, established and for all practical purposes indisputable: The purpose of life is to produce and consume automobiles."

    ~Jane Jacobs, The Death and Life of Great American Cities

  8. #33
    Bicikli Huszár sudo bike's Avatar
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    Quote Originally Posted by FBinNY View Post
    I can't speak for all 50 states, but since I live in NY and have been sued in small claims court, I can state with authority that NYS requires that corporations be represented by attorneys in small claims court. In my case I was able to prevail on the judge to allow me to appear pro se, since I was the sole share holder, and the claim was less than what 2 hours of an attorney's time would have cost.

    In the one case where I was the plaintiff, the case was settled before trial, so I don't know what would have happened otherwise.
    Wow. TIL. I had no idea any state allowed lawyers in small claims...
    "The bicycle is the noblest invention of mankind. I love the bicycle. I always have. I can think of no sincere, decent human being, male or female, young or old, saint or sinner, who can resist the bicycle."

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  9. #34
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    Go get the police report yourself. Call the insurance adjuster and tell them how much you want (say $650+tax+accessories for the bike, $XXX for bike rental while they twiddled around and $XXXX for pain and suffering) then go see if they offer anything. If they play hardball, then go file small claims against the individual and insurance (both). Include any pain/suffering/medical damage and anything else you can think of.

    I just did this with an insurance company when someone else hit my wife while the was driving our car (100% their fault according to police report) and they wanted to pay about half the cost of the damage (didn't quite total the car, but I wasn't having it fixed). They ended up paying the full amount I asked for in small claims plus fees a few days before the trial b;ecause obviously the client didn't want to go to court and they didn't want to send someone to assist their client.

  10. #35
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    Quote Originally Posted by sudo bike View Post
    Wow. TIL. I had no idea any state allowed lawyers in small claims...
    So we're equal here. I can't see how any state could disqualify a corporation from having a lawyer represent them in any proceeding, including small claims court. What if the president happens to be a lawyer? or if they don't have offices in that city and need to hire representation, who do they hire for the job?

    I can understand how plaintiff may not be allowed to have lawyers, but I can't see how a court can disqualify a defendant from using whatever resources he feels he needs.
    FB
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    An ounce of diagnosis is worth a pound of cure.

    “Never argue with an idiot. He will only bring you down to his level and beat you with experience.”, George Carlin

    “One accurate measurement is worth a thousand expert opinions” - Adm Grace Murray Hopper - USN

    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

  11. #36
    Senior Member dougmc's Avatar
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    Quote Originally Posted by FBinNY View Post
    So we're equal here.
    I would not jump to that assumption.

    A large corporation with a legal department will generally send a para-legal -- not a lawyer, but still somebody who's probably far more knowledgeable about how courtrooms work than you are. It won't be equal.

    Of course, a good judge should try to level the playing field even in that case.


    Quote Originally Posted by kalliergo View Post
    You file against the driver.
    Just to be clear, if the driver is the owner, fine. If the driver and owner are different people, as I understand it you probably should sue both of them, as the insurance probably covers the owner rather than the driver, and both are liable anyways.

    I wonder if you could ask the (small claims) court itself for advice in this regard?

  12. #37
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    Quote Originally Posted by dougmc View Post
    I would not jump to that assumption.
    When I said we were equal, I was referring to both of our lack of knowledge about other state's rules.

    In my experience, small claims judges try to level the playing field when there's an attorney, or someone simply more knowledgeable on one side or the other. They usually conduct trials by informal rules, and don't let lawyers interject objections, or proceedural issues, unless there's a blatant issue. When I was in the courtroom, I heard one judge remind a lawyer that there was no jury, and he should be mindful that the judge was able to separate the wheat from the chaff without any help.
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    “Never argue with an idiot. He will only bring you down to his level and beat you with experience.”, George Carlin

    “One accurate measurement is worth a thousand expert opinions” - Adm Grace Murray Hopper - USN

    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

  13. #38
    Cycle Year Round CB HI's Avatar
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    Quote Originally Posted by FBinNY View Post
    So we're equal here. I can't see how any state could disqualify a corporation from having a lawyer represent them in any proceeding, including small claims court. What if the president happens to be a lawyer? or if they don't have offices in that city and need to hire representation, who do they hire for the job?

    I can understand how plaintiff may not be allowed to have lawyers, but I can't see how a court can disqualify a defendant from using whatever resources he feels he needs.
    So one side gets a lawyer and the other side does not. Now that is truly bizarre.

    Individuals have to do the travel, so why not corp officers?
    Land of the Free, Because of the Brave.

  14. #39
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    Quote Originally Posted by CB HI View Post
    So one side gets a lawyer and the other side does not. Now that is truly bizarre.

    Individuals have to do the travel, so why not corp officers?
    In NY either side may bring a lawyer, but a corporation has to. Lawyer or not, the judge runs the case, and the rules are relaxed. For example, There's not the question/response of a typical trial, but each side tells their story and the judge himself (or herself) would cross-examine witnesses.

    Also judges make every effort to level the playing field, so bringing a lawyer (which is your right) isn't necessarily advantageous.

    I'm not pro lawyer but I know that some people aren't as articulate as others, or can get tongue tied in a court setting, and I don't know that a no lawyers allowed rule is very fair.

    I see the same thing in traffic court. Those who are well spoken have a definite advantageous over those less so.
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    An ounce of diagnosis is worth a pound of cure.

    “Never argue with an idiot. He will only bring you down to his level and beat you with experience.”, George Carlin

    “One accurate measurement is worth a thousand expert opinions” - Adm Grace Murray Hopper - USN

    WARNING, I'm from New York. Thin skinned people should maintain safe distance.

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