Thomas McCutcheon

Q: I was hit in a parking lot by a teenager who was on her cell phone and not looking at all when she backed into me. She was still on her cell phone when she got out of the car. The police would not make a report because it was on private property and I only have liability insurance. The whole situation makes me very angry. Is there anything I can do to prove that she was on her cell phone and not paying attention?

Johnny, Florence, AL

A: Parking lot accidents really cause problems for people who don’t have full coverage insurance. I am not suggesting that everyone should have full coverage insurance. In fact, I spoke to a young lady who had bought a 12 year old Jaguar and was paying $200 a month for full coverage insurance. Those cars can be bought for $5000 and I don’t know that the math works out to pay full coverage for a car that can be replaced relatively inexpensively.

Property damage only cases that have less than $5000 in damage to the car should go to small claims court. It is not economically feasible to hire me to go to small claims court for a $2000 or $3000 case. By the time you pay the attorney’s fee, your net result isn’t enough to pay for the repairs for your vehicle. Small claims court is designed for non-lawyers to prepare reasonably well with common sense evidence and witnesses and present their case to a judge who makes a decision, in writing, typically after the parties leave.

Small claims court does not automatically allow “discovery”. Discovery in the legal sense means or includes depositions, written questions that are to be answered under oath and subpoenas. In a regular automobile accident case that we would handle, a case involving a person who was hurt, we would be very interested in obtaining the cell phone number and the carrier (AT&T, Verizon, Sprint) so that we could issue for a subpoena to find out whether or not the person at fault was either talking or texting at the time of the accident.

That brings up a point that should be made. We use repair bills, medical bills and the other side’s phone records to prove our case. We photograph skid or scuff marks from the accident scene and we use the physical evidence from the damage to the vehicle for the jury to consider. The problem is people that are really hurt aren’t out snapping pictures of the car that hit them and writing down the exact time of the accident.

You will be able to testify that you saw the person on the phone. You will be able to describe or show photographic evidence of where the impact on your car was. You will be able to testify as to your version of how the accident happened. You will need to know the value of your car before the accident and after the accident and you should have a person who regularly repairs cars to testify as to how it will cost to repair your car present in court. Unfortunately, I do not believe that you will be able to prove, other than through your testimony, that the person that hit you was a distracted driver.

Buckle up, drive safely and as always your referrals are appreciated! 256-764-0112


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