I was in an automobile collision in Texas in which the other driver
rear ended me when traffic came to a stop. We both got out of the car
and he
offered to pay full damages to my vehicle. I sent him an estimate and
he again assured me he would pay out of pocket. After that he stopped
returning my calls. When I contacted his insurance company, he claimed
to have been hit from behind and pushed into my car by a third car,
which did not pull over and get out after the collision, as we did.

His insurance company says that they have pictures of damages to the
back of his car and that since they believe that he was pushed do not
deem him liable for the damages to my car. I do
not know if he was hit by another car, but traffic was stopped and he
did not attempt to get any other drivers licence plate information
(personally, I think that he has fabricated
that story). His insurance company says that this was a
hit and run and therefore he is not liable and will only pay half the
damages to my car.

My question is: Do I have a good case to take the other driver to
small calims court for breach of (oral) contract? He did not deny to
his insurance company that he offered to pay me damages and I also
have witnesses at the scene that will testify that he offered to pay,
so I don't think that establishing that he offered will be difficult.

The amount of damages is less than $400 to my car. His insurance
company says that they are willing to defend him in court - but it
seems to me that this should be an open and shut case. If I take hime
to court, should I name the insurance company as a defendant as well?

What are any legal precedants/ case law for these types of cases (I am
in Texas)?

Thanks.

Dear rozdog-ga;

Thank you for allowing me an opportunity to answer your interesting
question.

You do indeed have a good case, especially in civil court (small
claims court), regardless of whether the person made any promised to
assume liability for the damage, and there are a couple of reasons
why.

First, in civil court, unlike criminal or traffic court, you need not
prove anything beyond a reasonable doubt. Civil court only requires
that you present a convincing case, based on a preponderance of the
evidence – basically, you need only convince the court through logical
explanation of what happened, ideally, but not necessarily supported
by whatever evidence and/or witnesses you may have if possible.

Secondly, the insurance company is a “business” and their opinion of
the unreported events (meaning that the accident was not investigated
by a law enforcement officer or an accident investigator) are
meaningless when it comes to who said what to whom, and in some cases,
who is or is not at fault. They “do” have an obvious interest in it,
but ultimately they cannot control the outcome or prevent anyone from
making a claim. The most they “can” do is side with their client and
defend “themselves” in court in order to keep from having to pay for
the damages caused by their client. This is neither uncommon nor
particularly threatening under these circumstances (as I understand
them) – which leads me to the most revealing reason why you have a
viable case…

Finally, most states have traffic laws that basically state that
whenever one driver strikes another driver in the rear, regardless of
the reason, he/she is consider to be the driver at fault in the
accident (see my statement regarding preponderance of evidence above).
Texas is one of these states. Read this statute:

http://www.capitol.state.tx.us/statutes/tr/tr0054500.html#tr014.545.062

Ҥ 545.062. Following Distance

An operator shall, if following another vehicle, maintain an assured
clear distance between the two vehicles so that, considering the speed
of the vehicles, traffic, and the conditions of the highway, the
operator can safely stop without colliding with the preceding vehicle
or veering into another vehicle, object, or person on or near the
highway.

The legacy for this law can be found here:
“Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.”

You can clearly see that there is no provision in the Texas statutes
(as is the case in most states) for the defense that one vehicle was
“forced” into the rear of another, thereby relieving the driver of the
car who hit you of all financial responsibility. Even if the driver
who struck you was forced to do so by a previous rear-end collision in
which he was the initial victim, state law REQUIRES him to maintain a
safe enough distance from traffic ahead of him to avoid ANY collision
under ANY circumstances. While the person who struck him in the rear
would undoubtedly be charged (if he was found) for failing to maintain
a safe distance (or, “following too closely”, as it is known in my own
state), he too, would have been charged for having struck you as a
direct result of his failure to maintain the necessary distance from
the rear of your vehicle. A layman may contend that this is not the
proper translation or purpose of the law, but I can tell you that
these statutes are intentionally vague in order to prevent the need
for laws concerning every conceivable type of accident that might
theoretically occur. States found that it was much more efficient to
adopt a law which simply stipulates, “if you break it, you buy it”,
than try to draft 400 sub-laws concerning this single unfortunate
event. One thing you can bank on is that the insurance company you
spoke to ALREADY KNOWS THIS – and they certainly don’t want to write
you a check. No more than you are claming, it’s quite possible (but
not guaranteed) that they might even settle out of court with you if
you did decide to file a lawsuit, based on the obvious fact, and
client’s own admission, that he did in fact strike your car from
behind – for which there is clearly no legal excuse, even if he was
struck from behind himself.

How do I know this for certain? Easy, experience. About two years ago
my wife was struck in the rear by a vehicle that was hit in the rear
first by an 18-wheeler. Both the car driver and the trucker were
charged and ordered to share in the claim for damages that my wife was
eventually awarded in civil court – same type of accident you had (or
that the other guy “claims” you had), and she won her case based on
these same types of statutes. (Incidentally, the trucker was
subsequently sued for damages by the car driver, who was also awarded
her claim for damages). I’ve also been in law enforcement for over 22
years and I have not only seen this kind of thing happen, I’ve
investigated more accidents like the one you describe than I can
accurately recall. Nine times out of ten, it is a no-brainer to tell
who is at fault in a rear-end accident.

…And while there’s never an accurate way to predict what a judge
and/or a jury will do in a given case, I suspect that the court may
feel the same way about yours.

In fairness, I must point out the down side to your case so let me
point out a more recent decision that is not necessarily in favor of
your claim:

Rachel Knighten stopped abruptly at a traffic light and was hit by a
truck owned by Louisiana-Pacific Corporation (LPC). The LPC truck was
then hit by a truck owned by Satcom. Knight sued, alleging negligence
and won. LPC and Satcom appealed and got the decision overturned. In
No. 97-0721 Louisiana-Pacific Corporation and Satcom, Inc. d/b/a Cable
Texas, Petitioners v. Rachel Knighten, Respondent, the Texas Supreme
Court reversed the earlier decision by a lower court that held in
favor of Knight. LPC and Satcom appealed and got the decision
overturned, based on proof they both trucks were observing due regard.
I mention this case to say this, if you have any witnesses or evidence
that can testify or indicate that the peprson who struck you due to
his own inattention, behavior, performance, or other area in which he
may be negligent, it would certainly be in your nest interest to do
so. On a more positive note, I should point out that in the case
cited, Knighten was seeking much more than the $400 in damages that
you are asking for (as you might imagine from being hit by two large
utility trucks at the same time) and these companies were much more
determined to win that an insurance company probably will be over such
a small amount.

FINDLAW
http://caselaw.lp.findlaw.com/data2/texasstatecases/sc/970721o.htm
 

Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that that my research exceeds your expectations. If you have any
questions about my research please post a clarification request prior
to rating the answer. Otherwise, I welcome your rating and your final
comments and I look forward to working with you again in the near
future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga


INFORMATION SOURCES

TEXAS TRANSPORTATION LAWS
http://www.capitol.state.tx.us/statutes/tr/tr0054500toc.html

FINDLAW
http://caselaw.lp.findlaw.com/data2/texasstatecases/sc/970721o.htm



SEARCH STRATEGY


SEARCH ENGINE USED:

Google ://www.google.com


SEARCH TERMS USED:


TEXAS TRAFFIC LAWS

PRECEDENCE 545.062

545.062

---

Request for Answer Clarification by rozdog-ga on 26 Feb 2003 17:54 PST

This has been an absolutely great answer so far! Thank you so much,
you have exceeded my expectations! Since you are obviously knowedgable
in the nuances of this type of tort law I would like to ask for one
clarification:

The two comments below disagree about whether or not his statements at
the accicent and afterwards constitute an oral contract enforacable by
law. Do you have an opinion (or better yet, case law citations) that
speaks to this? The reason that I ask is that I am unsure whether to
base my case on the fact that he breached his (oral) contract and
should pay me, or the fact that he is at fault for the accident and
should pay me.

Thanks again! I wonder if I should file to recover the cost of this
google answer in my lawsuit :-)

---

Clarification of Answer by tutuzdad-ga on 26 Feb 2003 19:35 PST

Dear rozdog-ga;

Rebecka Eggers, a Texas Attorney at Law, says that a contract (of any
kind, in general) is essentially “a promise, which is supported by
adequate consideration. In other words when the promisor makes his/her
promise, he/she gets something in return. For example, you and I can
agree to go to a movie and that is an agreement. However, if I agree
to go to the movies with you only if you agree to go to the zoo with
me, we have just made a contract. The first is not enforceable as a
contract whereas the second is.”

She invites anyone who has questions regarding this type for contract
to contact her via the phone number and/or email addresses posted in
her web site:
http://www.doorway.com/netmag/5contract.html

This being said, it appears that you may be have an verbal agreement
unless you can successfully argue that the “adequate consideration” on
your part was the understanding that you would not report the accident
and/or prosecute the offender in return for his agreement to pay for
the damages. This would seem to qualify as adequate consideration as
interpreted by Eggers in her statement above.

I know nothing of the “commenter” below (the name that appears in
black, non-link text) but I hold the opinion of fellow researcher
“expertlaw-ga” in high regard. He is right in that you can still file
a report. The case is still viable for prosecution for up to one year
from the date of the offense, whether “special arrangements” were made
at the scene or not. In fact, this happens all the time. Simply tell
your side of the story and leave his out. There is nothing wrong with
this omission since you can’t really say what he was doing at the
time. If he wants his side told he can appear in person and tell it.
Moreover, if you sue him and he does not appear, you will win by
default whether he agreed to pay or not.

I should also mention that you don’t need to decide on one winning
legal strategy or the other if it comes to court. When you testify,
tell it all. The more you have in support of your case the merrier.
That is to say, your testimony should be that he not only hit you from
behind, which is clearly in violation of the law, but a third vehicle
was never seen (a passive implication that it may have been
fabricated) and that he also agreed to pay for the damages. His post
accident agreement may not carry much legal weight in terms of tort
liability, but it does suggest an admission of guilt.

As for being reimbursed for the fees associated with this question,
the rule of thumb here is, when you sue, sue for the moon. You may not
get it, but you "certainly" won't get it if you don't ask for it.

Regards;
Tutuzdad-ga

Great answer and great advice! I'm adding a 50% tip for your effort.

Yes.  It is a binding oral contract.  You will have to show that the
statement was made through unbiased testimony.  As long as the
agreement was for a payment less than $5,000 the oral offer to pay
your damages does not violate the Texas Statute of Frauds.  His offer
also suggests that he knew he was at fault and this can also act as
proof that there was no other driver behind him.  Good luck with your
case.  Remember it is your and witnesses testimony re: his offer that
will make your case.  This was fun pro bono legal work.

Don't count on a court regarding curbside promises and statements of
remorse as a "binding contract". If you can prove that the statements
were made, a court will regard them as statements against interest, or
admissions of a party opponent. But courts routinely let insurance
companies defend drivers against claims of negligence, without regard
to post-accident promises.

You have the option of filing a police report. The police may be a bit
reluctant, given the passage of time, but generally speaking they will
create an accident report even after-the-fact, particularly if you
indicate you need it for insurance purposes. Give them your account of
the accident - and only your account. You don't have to share the
other driver's story that he was rear-ended. Give them the names and
contact information for your witnesses. In a space of a few days to a
couple of weeks, they should have a completed report with their
assessment of how the accident occurred and who was at fault. Assuming
they don't find the "third vehicle" story to be credible, that should
work in your favor with the other driver's insurance company.