How To Refuse A 50/50 Insurance Payout

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Jamz
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How To Refuse A 50/50 Insurance Payout

Post by Jamz »

As some of you know, I fell off and tore my petticoat a few months back, thanks to some tithead who decided to do a u-turn out of stationary traffic directly across me.

I thought it was pretty clear cut, as he pretty much admitted liability at the scene... but surprise surprise he's changed his mind!

His insurance co offered to go 50/50 - meaning that I only get 50% of my damages awarded to me (wrote off the bike, damaged all my kit, broken ribs, head injury, lack of sleep etc), which does me fk-all good and it wasn't my fault!

To make things worse, my solicitor agreed that i should settle for 50/50!

Anyway, I got some information and help from http://www.therevcounter.com and a template letter that someone else had used for a similar accident (full thread here), and I think it may be useful to post it here incase anyone else needs it - hope you don't mind the links, Baz, but it's only fair to give the original source!
-------

Ref-
Date Of Incident –
Date of letter –


Dear Mr Can'tBeArsedFightingForMe,

Further to our previous conversations I feel it may make matters clearer by reference to the Highway Code. I shall compare my road position and manoeuvre with that of the other driver. You will see it is abundantly clear that I was doing nothing wrong and that the driver is entirely to blame.

My Circumstances

I was slowly overtaking a stationary line of traffic, and had already passed at least ten other stationary vehicles in the line.

I refer you to rule 88 of the Highway Code in the section "Rules for Motorcyclists" which reads as follows:

88: Manoeuvring. You should be aware of what is behind and to the sides before manoeuvring. Look behind you; use mirrors if they are fitted. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that drivers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.

Remember: Observation – Signal – Manoeuvre

A number of important points arise from this rule.

1. Note the use of the word WHEN as emphasised in the rule. It does not say "Do not overtake traffic queues" (or words to that effect), or suggest that it is an inappropriate course of action to take. It is clearly not a prohibitive instruction (see for example rule 74 which give prohibitive instructions). This clearly envisages that motorcyclists may, in the normal course of riding, overtake traffic queues.

2. I had already checked my mirrors and glanced behind to make sure nothing was overtaking the traffic queue already.

3. It was only the fact that I was progressing relatively slowly, in order to check for pedestrians who may be crossing between the vehicles making the accident much less serious than it would otherwise have been.

Before I move on, it is probably worth referring to the General rules for motorcyclists set out in rules 83 to 88. Again, I have reproduced these below.

83: On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet. This does not apply to a follower of the Sikh religion while wearing a turban. Helmets MUST comply with the Regulations and they MUST be fastened securely. Riders and passengers of motor tricycles and quadricycles, also called quadbikes, should also wear a protective helmet. Before each journey check that your helmet visor is clean and in good condition.
[Laws RTA 1988 sects 16 & 17 & MC(PH)R as amended reg 4]

84: It is also advisable to wear eye protectors, which MUST comply with the Regulations. Scratched or poorly fitting eye protectors can limit your view when riding, particularly in bright sunshine and the hours of darkness. Consider wearing ear protection. Strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision.
[Laws RTA sect 18 & MC(EP)R as amended reg 4]

86: Daylight riding. Make yourself as visible as possible from the side as well as the front and rear. You could wear a light or brightly coloured helmet and fluorescent clothing or strips. Dipped headlights, even in good daylight, may also make you more conspicuous. However, be aware that other vehicle drivers may still not have seen you, or judged your distance or speed correctly, especially at junctions.

You will note that:

1. I had complied with rule 83 by wearing protective clothing, which again helped reduce the seriousness of the accident.

2. I had complied with rule 86 by using dipped headlights. I always ride with dipped headlights as it is considered good practice and safer to do so.

Accordingly, the only conclusion which may be drawn from the above is that I was riding my motorcycle safely and as envisaged by the Highway Code. I cannot, therefore, be to blame in any way for the accident.

Mr Xs Circumstances

I now turn to Mr Xs driving manoeuvre.

I shall compare his manoeuvre to two fairly similar manoeuvres; setting off from rest as he was stationary and making a right turn.

Setting Off From Rest

This is governed by rule 159 of the General Rules for Using the Road. This is reproduced below:

159: Before moving off you should

use all mirrors to check the road is clear

look round to check the blind spots (the areas you are unable to see in the mirrors)

signal if necessary before moving out

look round for a final check

Move off only when it is safe to do so.

It is quite clear that Mr X failed to undertake all, or more likely any, of the requirements given that the point of impact was the sill of the drivers door.

Turning Right

This is governed by rule 179 of the Road Junction section for Using the Road. This is reproduced below:

179: Well before you turn right you should use your mirrors to make sure you know the position and movement of traffic behind you give a right-turn signal take up a position just left of the middle of the road or in the space marked for traffic turning right leave room for other vehicles to pass on the left, if possible

The first point to note, however, is that Mr X was not turning right as I approached. He was stationary in a queue of traffic tailing back from a roundabout. Clearly, Mr X does not have the patience to wait for traffic to flow so decided to pull out quickly and aggressively – also stating at the scene when asked if he had seen my headlight that he had not.

Again, however, the emphasis of the first two requirements is on observation and signalling. As set out above, Mr X failed these on both counts.

In addition to this, Mr X’s place of work on this day is approximately one mile in his original direction of travel, with any alternatives from the location of the accident being many times this distance. I do not believe he had any reason, as he claims, to have been turning right into the private driveway of the farm, other than impatience at being made late for work by the stationary traffic on his direct route, and his sole intention was to perform a u-turn and travel back in the opposite direction.

Accordingly, the only verdict which can be reached from the above analysis of Mr Xs manoeuvre is that it was undertaken without sufficient care and attention to myself and other road users.

Conclusion

Mr X was stationary and I took all reasonable care to overtake a stationary vehicle. I checked before doing so, no right indicator on the car, no mirror checks carried out by Mr X, no wheel turns to indicate movement, and the car remained stationary so I proceeded to overtake.

Mr Xs lack of patience to wait in a queue to move clearly made him decide to take a different route. The issue here is he pulled out without mirror checks or signals, demonstrating that he was driving without due care and attention. The fact that other road users in the same queue of traffic had observed my approach is clearly indicative that he was not concentrating on what was going on around him.

Mr X cannot be excused for not making the proper checks - what if I were a pedestrian or pedal cyclist? More substantial injuries could have been caused by his inattention.

The relatively superficial damage to both the car of Mr X, and that sustained to my vehicle as reported by the appointed engineer support that my speed was low enough to demonstrate that I was exercising a high duty of care in my riding, and was unable to avoid the situation caused by Mr X.

As shown above, I have followed the road rules clearly and exactly and am in no way responsible for this accident. If Mr X had made all the checks required as shown above or been paying attention he would have been aware of my presence and not moved until I had passed, in which case this accident would not have occurred.

I trust this is sufficient to pass to his insurers.


Regards,

--------

***EDITED AND UPDATED WITH LATEST LAWS QUOTED***
Last edited by Jamz on Tue Mar 11, 2008 4:12 pm, edited 1 time in total.
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Re: How To Refuse A 50/50 Insurance Payout

Post by masterofinsanity »

go for it mate! there's a nice fireblade for sale on ebay at the mo in castrol colours!
Don't forget people there is more to the zxr400 than this forum... check out www.zxrworld.co.uk also.
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Re: How To Refuse A 50/50 Insurance Payout

Post by Jamz »

I still can't get excited over the thought of buying a Fireblade... :smt064

Besides, I look quite good on green, now! :smt003
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Re: How To Refuse A 50/50 Insurance Payout

Post by RedexRobB »

at the end of the day you need to talk to your solicitor to discuss weather going for a better settlement is possible, at the end of the day if you cant come to a settlement then it goes to court and they decide for you.

Considering the circumstances i would tell them to go shove it, how in any way your accident was somehow partly your fault is beyond me, so long as you were doing things legally at the time and not being stupid then theres no reason why you should accept any kind of blame. =And, even if he has admitted blame the insurance company will always go for 50/50 settlement, just so they have less to pay out, thats what i got offered when i got knocked of. And i think you will also find that solicitors are under obligation to keep the time it takes to settle a case to a minimum, so he could just be telling you to settle with it on that basis.

But i would really argue the toss, unless they have proof of you having some liability how can they ask for 50/50?
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Re: How To Refuse A 50/50 Insurance Payout

Post by Gemini »

mate, when i had a car pull out of a driveway into my car, the other party tried the same trick - eye for an eye and all that!

basically they said they didnt see me driving along the road.

i sent a letter in saying if the driver had looked both ways b4 pulling out of their driveway they would have seen me, so if that was not the case they had driven out having only looked one way which would suggest driving without due care and attention,

as soon as i sent that letter in the settlement came!

also in my case the odds were stacked against the other side as they were pulling out from a minor to a major road

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Re: How To Refuse A 50/50 Insurance Payout

Post by rene »

really pisses me off when they say "i couldnt see you there". What so because you were to lazy to look properly it makes it my fault?

I always hammer on the ancors everytime i come up to a junction now if a cars there dont trust the kunts at all.
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Re: How To Refuse A 50/50 Insurance Payout

Post by philbrett »

"I didn't see you" really got on my tits when some middle aged tosser pull out right infront of my luminous yellow beach buggy from a minor road. The damn thing got me pulled over for "excessive noise pollution" so even if you didn't see it you'd hear it!

Always the first line they go for, because "sorry" admits liability.
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Re: How To Refuse A 50/50 Insurance Payout

Post by wonderpupp »

I never had a payout from my car insurance when it went 50/50. My car got fixed, mostly. I wasn't happy with the finish and they never refurbished my alloy wheels and forgot to put the courtesy light switch back in so the light comes on when you open the door. I had a hire car for the duration. I paid my £250 excess.

I appealed, but it went 50/50.

Then I got my car insurance elsewhere.
Then I got letters from Churchill saying they need me to go to court to be a witness so they can get their costs back from the insurance company. I asked them if this would get my excess back and they said no, it's just for their £2400 costs of my hire car and repairs.

I told them to f*^k off then. I still get letters asking for info, but I refuse to comply. Thye had my money and scarred my already battered insurance history with a 50/50 blame. But as far as it goes, I boycott churchill.
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Re: How To Refuse A 50/50 Insurance Payout

Post by Jamz »

Yeah - I had a hire bike for a few weeks with a bill of around £1500, so that will take a huge chunk out of my money if I go 50/50...
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Re: How To Refuse A 50/50 Insurance Payout

Post by Marcie »

Hi,
Turns out im in a simular situation.
Decided to pull out infront of me when i was overtaking a line of traffic and do a u turn. . .
End result Me getting air lifted to middlesbourgh hospital with lacerations to my neck which i got plastic surgery on ;) essentially a shattered face (Broken jaw, upper jaw,nose,eye sockets) Broken coller bone and torn ligaments, broken wrist... and Moderate TBI got ni fooking memory short term or long term :D
(the uppside im alway happy... But still...

Im named as number one vehical because the was a protected box ( picture cross hatched lines with broken lines on the outside - can over take if its safe to do so think thats rule 130 in the highway code) so im overtakeing a long line of traffic, and next thing i know im writing this... Yet it was on October the 21st
There is upsides to no memory dont worry :D

Anyway Im to blame ... yet she pulled out her little silver corsa without checking her mirrors for overtaking traffic.

Think im in this for the long haul... until then Guess ill just have no job etc etc.
Third party insurance, a mistake possiably.

Anybody had any experiances like this? - im just leaving it to my solicitor... the police are as much use as a chocolate teapot!!! I would get the only rozzer in the UK that dislikes bikers wouldnt i PC Tina Smith of durham constabulary...

Anyway give me a bell if you have any experiance with this type of thing.
Dawdan@hotmail.co.uk

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Re: How To Refuse A 50/50 Insurance Payout

Post by Jamz »

Ouch! Sounds like you came off a hell of a lot worse than I did!

The hatched area could be a problem but I'm not sure about that one - I still wouldn't have thought they could point the blame at you. But why were the markings there? Was there a junction or a turning there?

My case is still ongoing, with yet another 'solicitor' now 'working' for me...

I just hope Shoosmiths aren't the ones fucking up your case?
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Re: How To Refuse A 50/50 Insurance Payout

Post by Marcie »

Haha well at least we're still here to tell the tale ey mate.
No shoosmiths seem to be very good so far, its the good olde rozzers making things difficult.

Hope things level out with your claim.
Oh and if you cant work because of any injuries i would suggest the new Employment and Support Allowence (new incapacity), it all helps.

Good luck!

Still its got to be said biking has to be the best way, he says as he sends of for his racing licence. . .
Some body once told me... Theres only two things in life you'll ever need, Gaffa tape and WD40.
If it moves and it should'nt use Gaffa tape, if it doesnt move and it should use WD40!
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Re: How To Refuse A 50/50 Insurance Payout

Post by WelshD1K »

shoosmiths are brilliant they sorted my claim out when i tarshed my ns125 into a frotn of a brand new celica and wrote it off.


ont he road from brynamamn for llandovery. because the highway agency handt maintained the road after bad weather. me playign with some 600cc bikes on my 125 (haha) doing the limit :tease haha, come to a long ocorner and one of the manhole covers had been removed :O and tehre was a nice patch of cracked tar etc ! the bike infront went off sideways(zxr 636) i slamed on went sideways straightend it up, shatmyself thought ihad saved it and BANG hea donw ith a celica hahahaha over the roof and landed 30/40 yards donw the enbankment (where i thought i was going ) .


rozzers came out brethalised me bla bla bla . dad came took my biek home i got airlifted (altho i wa swalkign around just a bit fo a headache) car was a write off the frony wheel was touching the engine block :S , the other party claimed of my inshurance as i told him to , then i lost my 2 years no claims, then The rozzers sent em a letter for dangerous driving 3 points+ some stupid course taht was gonna cost me £350 or so and i didnt have that ££ . so the car owner got in touch and said that it WASNt my fault it was teh roads fault as the police had stated in the incident report that the road was in poor condition.


so i got my inshurance ( carol nash) ont he case. and they claimed back all expenses and i got my no claims back :D but i lost £3=400 on my repairs cos i did them myself and then they couldnt value the work needed to claim back. ( tbh all i bought was forks and a radiator) lucky the cops didnt check my bike as teh speedo was jamed on 50 (after i had locked the back end up :S) haha
so i guess 70-80mph as i hit the drain
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Re: How To Refuse A 50/50 Insurance Payout

Post by MillaMeter »

Hi,

The most hated word I hate to hear is "sorry mate I didn't see you" what a feking lie for a start. People are too damn lazy these days to check mirrors, blind spots etc.. before maneuvering. Couple of weeks ago I almost didn't come home to my fiancé due to a thick lorry driver with a 20 ton cab and trailer decided to pull in front of me whist I was minding my own business down a 30 stretch. Thanks to my bolloxed up brakes I managed to stop just in time with a arms length distance between me and the trailer.

Now my bro had a big smash up last year involving a pickup van type thingy. He T-boned this idiot at 60mph to a dead stop! He was minding his own business riding to work 1 cold morning when the pickup pulled out blind from a t-junction.

End result was: broken eye socket, broken coller bone, both broken wrists, cracked skull and a shed loads of bruises and grazes. He got a letter the other week from the other side saying he's now not pleeding guilty. He's now got to goto court and fight for his case.

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Ouch or what?

Regards

Rich
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Re: How To Refuse A 50/50 Insurance Payout

Post by Marcie »

By heck lads, weve all been in some scrapes!
Funny how no matter how bad you come off people dont have the decency to accept they are wrong.
Yeah shoosmiths are good, they told me that they get these cases all the time and win even though the police name the bikers at fault alot of the time, and its not over till the fat lady sings.
Maybe the Ducati 1098R is in the pipeline in 3 years time. :excited

We can grumble all we want about these drivers not seeing us, the fact of the matter is were the minority and no one will take a blind bit of notice, instead they make it harder for new ones to get into biking by changing laws...

Anyway ive just stiched in some red led lights into my frank thomas jacket for night riding... look like a fooking christmas tree crossed with a power ranger :D
haha
All fun and games! biggrin
Some body once told me... Theres only two things in life you'll ever need, Gaffa tape and WD40.
If it moves and it should'nt use Gaffa tape, if it doesnt move and it should use WD40!
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