Car parked on side of road, opened door onto my moving vehicle... Fault?

by W. Annie
(South Bend, IN)

Two weeks ago I turned onto a side street to look for a parking place at a soccer field. The roads get very congested with cars parked on both sides, so what is normally a two lane road becomes one lane down the middle from cars being parked on both sides.

I turned a corner and began driving when I heard a noise. I stopped in the middle of the street and asked a man getting out of his car if he hit my car and he grumbled at me. I walked to the rear of my car and sure enough his door had hit the back end of my car, scratching it to the metal. I asked him for his insurance card, which he tossed at me.

I later contacted his insurance agency, where they immediately stated he was not willing to file a claim with his insurance but would pay 50% of my repair bill. I contacted his insurance and they have stated they will pay 80%, stating I am 20% at fault because although he was parked on the side, I should have avoided his door. I explained his door was not open.

They then stated their insured said I had to swerve to avoid hitting his door. I explained to the claims person that if any swerving had occurred, my car would have been totaled due to how narrow the road is and it would not have been possible to avoid other vehicles parked.

She then stated her insured has said his door was cracked open and I should have avoided his door, seeing that it was cracked open. I again explained that he hit my car at the back end, which means I was already on my way past him when he opened his door.

They are refusing to pay anything more than 80%...I am thinking to take this to small claims. While 20% is not a lot of money, it is the principle that I am not at fault here, or atleast I truly believe I am not.... any ideas?


Answer:

Hello W. Annie,

From what you explain, you are 0% at fault and should be compensated 100% + rental cost if you need one. Really, this is a very clear cut case in our view. The main evidence for you is the point of impact in your car. If the damage is to the rear of your car, it can only mean that you were already past him (the driver was past the person who opened the door), meaning you had no possible chance to avoid, but to see what he was doing back there.

In addition, this also means that you were right behind him so he could have see you. Clearly, he did not look when he opened the door.

If he opened the door and then you hit him, the damages would have been to the front of your car, not the back. You would have a long scratch from the front to the back or something to that effect. Even if that was the case, liability rests upon the person opening the door.

Must states have “opening and closing” statutes. Read your state code regarding rules of the road (traffic regulations). Try to search under loading and unloading, and entering and exiting a vehicle. Most states, and yours probably also, put an affirmative duty on the person exiting (must look first).

You need to decide if small claims is worth it, but with your evidence, you have a good chance of doing better than 80%.

Please see http://www.auto-insurance-claim-advice.com/State-Traffic-Law.html for a link to your state code

Most of the time, you can push your insurance company to help you out and take the other side to arbitration, please see: http://www.auto-insurance-claim-advice.com/arbitration.html but in your case, your damages might be too low (below your deductible) so your insurance company does not have to get involved.

If your damages are more than your deductible and you have collision coverage, then you can seek the help of you insurance company by going to arbitration.

Good Luck
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