Bit of an insurance/legal pickle...

[Tokeem]

Just want to get some advice from a situation I'm in.

About a year ago now I was knocked off my bike. Was filtering past some slow/stopped traffic, when a woman pulled out of side road and hit me on my left side.

Engine casing split, bruised/hurt leg, not much damage to her car. Some scuffing on the bumper, knocked the badge off.

Started the ball rolling on the insurance. Day later her insurance offers me a hire bike. They take mine to be looked at, I take the hire bike.

My bike gets written off by her insure's assessor , I offer to buy it back (I do love my bike). They send me a cheque for the written off value minus the cost of buying it back. No quabbles there.

Start sorting out the bits and pieces, damage to my phone (landed on it) scuffed/broken armor in leathers, ripped jacket and boots. Sent off all the stuff I can, but most of my gear is either old or bought and bike shows, so no receipts.

In the mean time I'm sent off to the doctors for him to look at my leg. Nothing major, deep tissue bruising and psychological issues e.g. lost confidence on roads. Gave a recovery time of about 6-9 months.

All the stuff is sent off, I get a form of authority from my legal cover stating the third party will pay £1400 in personal injury in full and final settlement. Signed and sent off. This is in Dec 2010.

I got a letter in Feb stating the third party is holding me 20% liable for the accident and are offering very little for my gear and phone (less than £50) I said I don't agree and ask them to negotiate a revised offer.

Couple of letters later from my legal cover, not getting very far. Third party is very slow and only responds to letters.

Come mid June, my legal asks if I'd like to start court proceedings, as they are still not responding. I agree.

I fill out all the relevant documents and send them off.

In the mean time my case is transferred to another person within my legal cover.

Come today, I get a letter through from my legal cover saying the third party has offered an out-of-court settlement of around £1700 for everything, personal injury and gear damage, but stating that I'm now 80% responsible and will only be getting around £320 in damages.


Just a few things I wondered if people could answer.

Would accepting to write my bike off quickly and without quabble be an admission of guilt, as I only have 3rd party insurance and did not have to pay any of my excess?

Would the form of authority for £1400 of personal injury compensation go straight to me as it states that it is "£1400 in full and final settlement"?

Why would it suddenly change from 80/20 in my favour, with the letter dated in Feb clearly stating that the third party finds me 20% liable, to 80/20 against me now, with it only roughly referring to anything to do with my actual case, instead mostly comparing it to Powell vs. Moody.

I am aware that the result of that case was 80/20 against the biker, but again the letter from Feb clearly states 20% against me.

I have been unable today to contact anyone at my legal company, so hoping I will be able to do this tomorrow but just wanted any advice you can offer.

Many Thanks

[Wafer_Thin_Ham]

There was a very recenty filtering accident thread with lots of good advice in it. Do and search and speak with your legal team about the precidence cases described in there.
____________________
My Flickr

[Tokeem]

Thank you very much, I'll take a look at those now.

[T.C]

I come across this type of thing almost on a daily basis. Unfortunately the downside of using legal expenses appointed solicitors.

Firstly, what are the grounds for suggesting that you accept 80/20?

Based on what you have said, if the third party has pulled out of a junction on your left whilst you were filtering, then 100% liability against the other driver as she will have failed to afford precedence to traffic on the major carriageway and probably failed to comply with a stop or give way line or sign. It is also non compliance of the Highway Code as it now states be aware of the possibility of filtering motorcycles (although the HC is advice and not law)

Unless you were filtering past adjacent to a junction on your right, and got hit by a vehicle pulling out from a junction on the right, then the case of Davis v Schrogins (2006) is your authority to make the other side 100% liable (which your solicitor should be familiar with) although many solicitors and particularly insurance companies still use Powell v Moody (1966).

Accepting your bike was a total loss is not an acceptance of liability so don't worry about that.

Has your solicitor prepared a schedule of costs?

A schedule of costs are the bits that actually value your case.

Under this term there are 2 headings, General damages and Special damages.

General damages covers your actual injuries and pain and suffering, and each injury has an upper, middle and lower value as per the Judicial services review board, althouugh you only get one payment for pain and suffering regardless of how painful or how many injuries you sustained.

Special damages covers all your other costs, bike, kit, loss of earnings, out of pocket expenses, in fact anything that has incurred a cost as a result of your crash.

Now your solicitor should have gone through all this with you, and based on your medical records and the independent medical examination you will have had done, he/she should have a figure in mind that is acceptable.

Your solicitor cannot accept a settlement without your approval, but should advise you as to whether the offer is reasonable or should be improved.

Most LEI solicitors often undervalue cases so that they can get a quick settlement and then get you off theor books and recover their fees as quickly as possible.

As far as issuing proceedings is concerned, this will be to protect your claim. In personal injury claims there is a statute of limitation of 3 years from date of injury or date of knowledge whichever is the sooner.

If the case is not settled within 3 years, and proceedings are not issued, then the defendants can apply to have to have your claim struck out and you get nothing.

However once proceedings are issued, this usually gets the other side focused because they know that if it goes to court and trial, then if they lose it will add many thousands to their costs, in catastrophic cases many millions. It is common practice for the other side to string things out because many of them hope that the claimant will simply give up and go away.

(I have just been involved in a case where the injury to our client was only worth about £8,000, but because the other side would not even acknowledge our correspondence or even talk to us, then final costs they had to pay was around £50,000. Had they been sensible it would have been around £2,000)

Finally, do not sign a full and final settlement until such time as you are happy that the case has been resolved to your satisfaction.

Once you sign a full and final settlement, you cannot go back and ask for more if problems develop later on, the only redress then would be to sue the solicitors for professional negligence.

One further point that may help you!!!

If proceedings have been issued, then you are now free to choose whichever law firm you want to represent you and there is nothing the insurers who are underwriting your case can do about it.

It is part of the civil procedure rules that whilst they can to a degree dictate who they instruct in the early stages of the case, once prcproceedingse issued, you use who you want with no penalty.

The downside is finding someone who would be prepared to take on your case as most of the major fee earning will have been done, but even nownow some my colleagues ask me to look at bike cases we have taken on in such circumstances, and it is unbunbelievableey lack of evidence (even three years on) they have obtained, even failing to get a statement from the actual claimant.

A lot to take in I know, but if you want further help or advice, feel free to PM me, it is the area of law I work in, especially helping fellow motorcyclists.
____________________
It is better to arrive 30 seconds late in this world, than 30 years early in the next

[Tokeem]

@T.C Thank you very much for your help, I've sent you a PM with a few more questions/details.