BMW 1 Series - RTA, third party insurer denying liability - KB101

I'll keep this short and simple.

Parked my car at road side, near side to kerb. Got out, closed driver's door, opened rear offside door and leaned in over back seat getting things together to take into my house.

A supermarket home delivery van came barrelling down the road and his wing mirror clipped my open rear door, which was of course immediately behind me as I was leaning in. Ripped his wing mirror clean off, shattered my quarter light, bent the quarter light frame and the door itself.

The driver got out, apologised, we exchanged details, etc. I took pictures of both vehicles and the road layout. I found shattered glass in my rear left jeans pocket. No witnesses, dark, wet, 8pm.

Now the supermarket's insurer is refusing to admit liability, saying I opened door as he was passing. I doubt the supermarket driver is saying this as he was very reasonable and apologetic - I strongly suspect it's the insurer.

I have sent my insurer all the photos, a detailed statement of the incident and a plan showing the road layout, direction of travel, etc.

My excess is £500.

Questions please:

1. Who decides whether we agree to 50/50 liability - is it me or is it my insurer? Can I force my insurer to contest it and take the case to court? I am very happy to go to court and tell the judge what happened. If the supermarket driver went to court I seriously doubt he would be prepared to lie, and if he did it wouldn't be convincing, and the judge would know I was telling the truth.

2. If my insurer does agree 50/50 liability against my wishes (if this is possible), can I take the case to small claims to get my £500 back? And if so who do I sue - the driver, the supermarket, or their insurer? Would I have the opportunity to ask questions of the supermarket's driver in court?

3. If I were to win in the small claims court, what implications would this have for my insurer's financial outlay and thus for my future premiums? (have protected NCB but I understand that premiums will still likely rise).

4. If I were to lose in the small claims court, what implications would that have?

I'm very happy to go fight this the whole way. All suggestions and advice you may have is greatly appreciated!

Thanks

BMW 1 Series - RTA, third party insurer denying liability - FP

Congratulations on a very clearly-written post, which, unlike some we get, lays out the events and your concerns logically.

Others may well have more to say, but my inital thoughts are that you are basing your determination to fight on your belief that the supermarket delivery driver will tell the truth if put on the spot and back up your version of events.

Given that there are many, many cases where people are reasonable and apologetic at the scene of an accident, but change their stance completely later on, I'd say that was a pretty big assumption.

If I'm right, it would be your word against his, with no witnesses to swing it.

However, there's no harm in pushing your case at this stage, as long as you're realistic about your chances.

I can't answer Q1, I'm afraid. In Q2, I'm not sure who you would sue (possibly the supermarket driver's insurance company?), but I'm pretty sure you will not be asking any questions; you will present your case and the other side will respond - it is then up to the judge to decide. If you lose, you will pay the court's costs. It is worth bearing in mind that there may not be a "hearing" and the case may be dealt with on the basis of written evidence alone.

Q3 - your premiums will rise, simply on the basis that you have been involved an an accident. Q4 - see note above re. costs.

I hope someone else will clarify the areas I'm uncertain of; I find the case an interesting one.

Edited by FP on 27/10/2014 at 09:05

BMW 1 Series - RTA, third party insurer denying liability - bathtub tom

Why couldn't you have reached the items safely from the nearside rear door?

Could be a question you'll be asked.

BMW 1 Series - RTA, third party insurer denying liability - skidpan

have protected NCB but I understand that premiums will still likely rise

Its often quoted on here that even if you have Protected No Claims your premium will still rise if you claim

From personal experience I can say that is absolute nonsense.

Wife had an accident, hit our own wall in front of the house. Totally to blame. On renewal premium did not change.

Dad had an accident. Hit pedestrian barrier in supermarket car park. Totally to blame. On renewal his premium actually dropped.

I will add that both those claims were with Aviva.

BMW 1 Series - RTA, third party insurer denying liability - brighteyes
In my opinion the court would rule that, given the situation as described you are liable for some if not all the blame for opening your offside rear door when the third party could argue the point that you should have used your near side door. Whether the court would believe you as opposed to the other driver is a moot point, they deal in facts so on the face of it if you were offered a 50/50 claim I'd swallow my pride and accept. If not you could finish paying the whole claim plus any costs of the third party's insurer. Like I said this is only my opinion and I'm assuming you posted this for that very reason, so please don't shoot the messenger.
BMW 1 Series - RTA, third party insurer denying liability - daveyjp
I would be asking your insurance company to investigate if the delivery driver has a camera on board.

As regards protection of NCB, LV had no problem asking me for another £200 the year after I had a claim which was found 100% in my favour. Shopping round got it down to sensible levels again, but LV have not been competitive since.

BMW 1 Series - RTA, third party insurer denying liability - galileo

Why couldn't you have reached the items safely from the nearside rear door?

Could be a question you'll be asked.

Often as I drive past the local park (not a wide road) I see mothers extracting infants from the rear of their parked cars through doors they open into the road, rather than reach across from the kerb side (or park the other way round). There will eventually be a nasty accident, not all look for approaching traffic and not all traffic drives at a sensible speed.

BMW 1 Series - RTA, third party insurer denying liability - RT

Often as I drive past the local park (not a wide road) I see mothers extracting infants from the rear of their parked cars through doors they open into the road, rather than reach across from the kerb side (or park the other way round). There will eventually be a nasty accident, not all look for approaching traffic and not all traffic drives at a sensible speed.

If two child seats are fitted in the rear, it can be quite a strain to reach across from the nearside to get the offside one in/out of their seat.

BMW 1 Series - RTA, third party insurer denying liability - KB101

Thanks, everyone. Will ask the question about on-board cameras and may well visit the store and have a word with the manager. I'd hope that Tesco would be interested in treating people well and maintaing a good reputation.

BMW 1 Series - RTA, third party insurer denying liability - gordonbennet

I think you will end up a knock for knock type situation here (if such a thing exists) with both sides having to accept at least a proportion of the blame.

I wouldn't be in a hurry to incur legal costs either, it's far from a cut and dried case IMO, i'd be trying to mitigate the costs to repair my car by finding a door at a breakers and getting a small one man and his dog bodyshop to fit/paint it and not claim at all....course its possible you may get a claim from the delivery company for their door mirror made of unobtanium, plus downtime etc.

BMW 1 Series - RTA, third party insurer denying liability - KB101

Update: approached Tesco store manager, she was very understanding and keen to help, but after much toing and froing turns out the driver's statement said my door had suddenly opened as he passed, so their insurers obviously not willing to be flexible on that basis. (I suspect the driver genuinely believed his statement, as he obviously didn't see the door or me In advance of the impact.) I was about to give up when my wife suggested we go straight to the Chief Exec of Tesco. So we emailed him our detailed dossier with photos, layout plan, letters, etc, and within the week they'd instructed their insurers to take full liability. Even sent my wife big bunch of (non-Tesco) flowers. So justice was done! There's a moral In there somewhere.

BMW 1 Series - RTA, third party insurer denying liability - Andrew-T

Good grief - did this really take 12 months?

BMW 1 Series - RTA, third party insurer denying liability - Avant

When insurance companies are involves - yes, quite easily.

But thanks very much for coming back and letting us know. Good decision by Tesco's boss: the costs are peanuts to them but the good publicity, through you telling your friends and posting on here, makes it well worth while.

If more decisions were made by human beings instead of computers (which aren't capable of making decisions but are all too often allowed to), there would be many more happy customers.

 

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