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  # 1327260 18-Jun-2015 13:14
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Thanks for everyone's input.  As I said before, it's much appreciated.

We haven't heard from their insurer yet and have been told to spearhead everything instead of waiting for the fallout.  So I will be lodging a claim with their insurer claiming they were at fault and get this moving along.

We are also still working through the issue with State, although it seems as if we don't really have any legal grounds to stand on.  I find it confusing that they made no attempt to keep us as a customer.  When I tried to leave Youi, they were ringing me all day with different offers and trying to keep me on the phone as long as possible to say "yes I'll stay".

We will work on what we know, present the facts to the court and go from there.  I wouldn't be unhappy if the judge adjudicated fault and we had to pay for our own damage.  Which would not be an issue for them being fully insured.





Sometimes what you don't get is a blessing in disguise!



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  # 1372243 22-Aug-2015 23:48
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New information time.

About a month ago, the insurance company sent a letter regarding the accident with an accident report form telling Katy that if no reply was received within 7 days, she would be deemed "at fault" with methods of payment attached to it.  She was not informed of the amount she had to pay in this letter.  She responded via phone advising that she would be seeking advice before officially responding.

Katy received another letter advising she hadn't responded, but this time we would actually, totally, be fully responsible no joke this time for real, no-take-backs if we didn't reply.  They had also been kind enough to tell us methods of payment once again without actually mentioning any numbers.

Along with the accident report they asked us to fill out, I decided to defuse their bullying behavior and attached a letter advising them that we would no longer be able to respond to posted mail and to email the address provided.  We also advised them that if they did not respond via email within 72 hours as of the 6th of August (which was 7 days in advance from when I sent the letter) that we would be considering the case closed and would no longer be entertaining any correspondence from them.  Why not give them a taste of their own medicine?

On the 20th of August, 11 days after their cut-off deadline I set for them, they sent Katy an email stating: "As we have still not received payment of your debt of $5,XXX.XX owing to us, we intend proceeding with an action in the Disputes Tribunal".  This is literally the first correspondence we have had regarding how much they are doing her in for.  What's more, they sent the email on the 20th, yet the letter attached is dated the 22nd of August.  Is that even legal?

My question is: 

- Is my letter that I sent with "my" deadline just as legal as the deadline they forced upon me?  If so, they breached it and are tough out of luck.
- Are their letters with methods of payment without a sum owing legal?  Is that considered bullying?

Their client is signing forms regarding the court situation and they say that only full payment of the total amount will halt proceedings.

My current course of action is to:

- Call them requesting all mail correspondence be emailed to a provided address.
- Request all phone records of anything pertaining to the case, even though I have them.  They make a big deal about recording the call, if they say they don't have it, then it's lucky I do anyway!  More fire power in court.

We plan on going to the citizens advice bureau and seeing what they say.

Any further input is welcome though! :)





Sometimes what you don't get is a blessing in disguise!

 
 
 
 


gzt

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  # 1372248 23-Aug-2015 00:21
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Is it not unusual for an insurance company to move their client through small claims?

Is there a police report on the accident?

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  # 1372272 23-Aug-2015 07:48
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Get in touch with the insurance ombudsman re state. Also could try these guys www.claimshelp.co.nz they are very good but not sure what they charge.

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  # 1372276 23-Aug-2015 08:13
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CAB is a waste of time, it's a bunch of well meaning people with life experience and a phone book, nothing more. You can get better faster information out of a google search most of the time.

If you want real advice, you need a lawyer. Free legal advice is available at you local community law centre.

The one thing the CAB could be useful for is pointing people to the community law centre, but i don't think they even know it exists.




Location: Dunedin

 


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  # 1372296 23-Aug-2015 09:17
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scuwp: Good luck.  But like 'Hatch' has already alluded to, the onus in on the policy holder, not the insurance company.

The give way rules at a roundabout are clear, and fundamentally Katy appears (from your description) to have failed to give way.  Poor visibility, rain, speed etc are all mitigating circumstances that may be taken into account, but the fundamental give way rule still applies.  I don't see how she can be nearly exiting the roundabout, and be struck on (I assume) the right side, but without a full analysis including a review of all the evidence including an inspection of the damage and scene, I will reserve judgement.  If the Police attended/investigated then they may be able to clarify the contributing factors and ultimately fault.      

Often people 'look' but don't actually 'see'.  It's a common explanation after a vehicle crash.  It's amazing what people fail to notice despite going through the physical motions of having a look (speaking from 20+ years as a crash investigator/re-constructionist)

I suspect sadly you have a couple of battles on your hands.


That covers it all I feel, well stated. 

However, there are issues with the law. IANAL but I have done some papers via a financial degree. It's fair that there is no onus on the insurer. BUT, does the law cater for other reasons for non payment? Does the law expect 2 million adults, to sit down every payday or 30th of the month, and tick off automatic payments from their bank account and credit card? Bank fault or changed CC number? Is that reasonable? Especially in todays email world, and no doubt the law is behind these modern times. I get an email from my telco, power company and Sky as a bill sent advice. I get the bill via email. I get a text from the power company as well. I get a text from Sky if the due date passed. 

Its about what is reasonable and not reasonable. If the bill payer was slack, tough. If a genuine reason occurred, I feel that brings the bill sender into play

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  # 1372299 23-Aug-2015 09:24
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Reading the OP's last post, seems odd that they reply via email saying they hadn't heard from you, yet you had told them that they have to send an email. The lack of comms is a point against them. The lack of a monetary figure is a point against them. Its not dodgy, but its pretty damn vague and one sided. Is there a Police report that decides or implies fault? 

So far it seems its a "he said she said" issue of fault but the silly think is, your partner appears not have have been given an opportunity to be involved. I thought that the Police HAVE to be called? In case charges or injury occurred, and even if the latter had't happened, they need to see that?

 
 
 
 


gzt

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  # 1372316 23-Aug-2015 09:58
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I think you will find it was more a grace period than a legally supported deadline & shows a paper trail that the applicant tried to resolve the issue in good faith prior to beginning a court process. No legal weight to the date. Eg; You could pay tomorrow and they would have to suspend the action. I expect the fact you did not give any reasons when you called provided no basis for consideration of an issue so they just continued. If you had said well actually the other party was at fault and we can prove it then maybe some discussion would have taken place. IANAL.



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  # 1372478 23-Aug-2015 13:19
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Police did not attend the scene, even though Katy called them after ensuring everyone was OK.  The police refused to attend as nobody was hurt, even though they are literally 50 meters up the road.

In the letter I sent attached with my accident report form, I stated that katy was not at fault and she would not be taking any responsibility for damages or associated costs.  That should have been enough to invite discussion, however they just slapped us with an email demanding 5K and telling us to pay.

I will fight to the death.  Best outcome is that it's simply deemed an "accident".  The damage to her car suggests she was hit on exit being behind the drivers side door and all the way down her station wagon.  The glass on the road was also next to the exit.  It's unfortunate the police didn't attend.  I can't see how Katy is at fault for not giving way if she was already using the roundabout.

I'll go to CAB and ask specifically about community lawyers.  Thanks for the tip!





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  # 1372483 23-Aug-2015 14:03
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DravidDavid: I will fight to the death.

IANAL and I understand that you are upset about your insurance lapsing, but the picture you posted on page 1 seems very clear. If I were the insurance company, I would make the assessment that either:
Case 1. The Hilux was going around the roundabout back the way it came (possibly to enter the shopping area on the right of the picture), or
Case 2. The Hilux was using the same exit as your partner.

In case 1, the Hilux driver is at fault, because they should have stayed in the right-hand lane to go around the roundabout and hence not collided at all.

In case 2, your partner failed to give way to the Hilux on her right. Given the distance to where the Hilux entered the roundabout, it was probably already part way through the roundabout when your partner entered the roundabout. It is plausible that the Hilux driver did not see your car's headlights because the lights would have been pointing away from them (not that this matters in terms of liability). Speculation about whether or not their lights were on is just that - speculation. Consequently your partner is at fault.

Which case applied? If Case 2, then what is your defense?

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  # 1372504 23-Aug-2015 15:33
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gzt

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  # 1372512 23-Aug-2015 15:54
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It is not a great roundabout but the lanes are clearly marked:

From: http://www.nzta.govt.nz/resources/roadcode/about-driving/giving-way-at-roundabouts/

Not all roundabouts are marked the same way, so take extra care – especially at the exits. If you need to cross from one lane to another near an exit, give way to any vehicles in the lane that you want to enter. When coming up to a multi-laned roundabout:

- slow down as you come up to the roundabout and be prepared to give way
- be in the correct lane for where you want to go
- give way to all vehicles that will cross your path from your right as you enter the roundabout.


Edit: Also in this case for Katy the vehicle does not cross her path from the right as she enters.

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  # 1373728 25-Aug-2015 11:45
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Based on your diagram and where the damage to your vehicle is, the hilux would have to have driven onto the roundabout quite fast to hit Katy's car.

I would suggest she was on the roundabout before them, but going much slower, and they have come onto the roundabout very quickly.  They admitted to her at the time they were running late for a birthday party, so they were clearly in a hurry.

The lights off argument doesn't help you, as it implies Katy should have stopped if she could have seen.

It seems to me your best argument is that she was already on roundabout, they entered it, failing to give way and changed lanes on the roundabout, again failing to give way to Katy who was already in that lane.





Mike



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  # 1373857 25-Aug-2015 13:59
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MikeAqua:
It seems to me your best argument is that she was already on roundabout, they entered it, failing to give way and changed lanes on the roundabout, again failing to give way to Katy who was already in that lane.


This is the primary argument I've decided to use.  Katy was already on the roundabout and the Hilux driver failed to merge safely and in his duty of care to prevent an accident.  The fact they struck Katy on her blind side is a big help to back this up.  The location of the glass on the road...etc.

I will prepare two 3D visualisations to present to backup her version of events.  I will also be talking to the police about my options.  If I can get a statement out of them supporting my theory or at least backing up the road code segments I'm arguing that I can take with me, that would be good.  Although, I think I might be dreaming there.

I may also get a written statement from my panel beater, as he is the only one that really assessed the damage properly.  Perhaps he can draw an estimated speed based on the damage he reviewed or something.

My brother has been on this track before.  He had all the documents and testimony in the world from police and evaluators, yet was beaten by a teenager with no documentation at all and only a he said/she said argument and on-the-spot guesstimation of her vehicle's value.  I think perhaps the reason was my brother had no idea how to counter her silly arguments and unfortunately took a hit due to her ability to turn on the water works.

Perhaps that's Katy's saving grace.  She always crys under pressure, so maybe I should let her take this one after all!  I may not even be able to speak anyway.

I'll be preparing a blow-by-blow written examination of the situation so nothing is forgotten either way.  Whether or not I read it or she reads it, doesn't matter.





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  # 1373889 25-Aug-2015 14:25
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I have been following this thread with lots of interest.

Very interesting argument you have there. 
Despite there being 2 lanes on part of this roundabout I guess the question is going to be asked as to who entered the roundabout first.

If you entered the roundabout first, I guess this can go in your favor, and car 2 would have done an illigal lane change.

If you entered the roundabout second, well then you did not follow the basic rules of a roundabout. Yield to your right. it does not matter which lane the other car is in. 

Judging from your image, it looks like car 2 would have had to be travelling at quiet a high speed to have entered the roundabout after you. Your car is very close to the roundabout entry, which tells me that there is a strong possibility that the other car may have already been inside roundabout. 

If this was me I would also factor speed into my primary argument, and indicate that you were already inside the roundabout before the other car entered. 

Multi-laned roundabouts

Most roundabouts that have more than one lane in each direction are marked with lanes and arrows, which help you enter and leave the roundabout. The lane markings and arrows will tell you which lane to use.

Not all roundabouts are marked the same way, so take extra care – especially at the exits. If you need to cross from one lane to another near an exit, give way to any vehicles in the lane that you want to enter.

When coming up to a multi-laned roundabout:

- slow down as you come up to the roundabout and be prepared to give way
- be in the correct lane for where you want to go
- give way to all vehicles that will cross your path from your right as you enter the roundabout.


http://www.nzta.govt.nz/resources/roadcode/about-driving/giving-way-at-roundabouts/

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