At fault is immaterial.
I have 2 accidents in commercial vehicles that were determined by the DOT to be not my fault and nonpreventable but the insurance company still will not insure me for cdl employment telling me I have a "negative record" with "accidents"
You do not insure against fault...you insure against liability...
Fault does not create liability. It adds criminality to the liability
She accepted possible liability when she entered traffic.
While it can be argued she did not know she was going to pass out it is a fact that she knew she was engaging in a dangerous activity that could result in liability because it is a requirement to insure against liability to drive regardless.
The potential for liability is a self evident or prima facia fact further evidenced by the legal requirement to establish adequate financial responsibility (insurance or bond)
The minimal amount of coverage required by the law is the least possible exposure you could be expected to face
It is a matter of fact that her vehicle left her right of way and aggressed your right of way resulting in property damage.
If you say you didn't see her then your admitting a failure on your part
Now you were within your right of way but the insurance could rule the accident "preventable" if they can establish that there was some possible action you could have taken to avoid the accident.
The lesson I learned driving trucks is that I always state that:
1) I was within my right of way
2) I was prepared to react to a hazzard
3) I identified the hazzard
4) I took all possible actions to avoid the hazard (short of aggressing someone else's right of way.)
As long as you are within your right of way it is NOT your fault to any degree.
If you are faced with 2 possible accidents...
One where you are innocent
The other is where you take an evasive action that results in the death or injury of another.
The person who causes you to leave your right of way and you to hit someone else cannot be held accountable for your liability in failing to maintain control of your vehicle in your right of way.
You have a responsibility to yield your right of way to prevent an accident with an aggressor but cannot be expected to cause injury to another innocent party to avoid your injury by the aggressor.
If evasive maneuvers will result in an innocent party being put into jeopardy you have a responsibility to maintain your right of way and take the hit.
It is the aggressor who is always responsible for loss or injury.
The last thing you want to do is become the aggressor and the responsible party as a result of someone elses' loss of control.
2 vehicles cannot enjoy the same right of way so there must be one party at fault and the other party a victim.
It gets real greasy when the same insurance company is insuring both vehicles in a "collision"... notice the word collision carries no implication of fault?
Insurance companies play word games replacing accident with collision then making the case both parties are at fault then attempting to pay out a partial claim.
Whenever an insurance company is saying their covered is not at fault they are claiming that you are at fault.
It must be one or the other they both cannot share the same right of way...the roads and traffic controls aren't designed that way.
There is always someone at fault even though there might not be anyone criminally liable.
I'll repeat the insurance does not indemnify against negligence it indemnifies against fault.
The fact remains that the woman failed to maintain control of her vehicle...
The issue of why is immaterial.
It doesn't matter if she was swerving to avoid hitting a kid on a bike, or if another vehicle shoved her's into your's or if she innocently passed out due to an unforeseen medical condition...those are all arguments against negligence
The indemnification your needing to address is the failure of her to maintain control of her vehicle and your property damage and whatever... your not suing her yet for criminal negligence what they would call punitive damages...your looking for compensatory damages.
The insurance company is feeling you out
They will try to get you to admit fault in some way shape or form
You have the same right to not speak to the insurance company in case you accidentally create a false liability for yourself as you do to not speak to the police to prevent creating a false incriminating evidence.
You do have the right to say to them simply "Your customer damaged my property and if am not made whole I will bring suit" and just leave it at that. try sticking to that... and set a date by which you "will initiate action".
It's like when your behind on a bill and they give you a foreclosure date. it forces you to negotiate with them to avoid something you really do not want to go through... a lawsuit calls all bluffs
In negotiations you also want to identify your target price...
You make your offer a little higher (reasonably)
Then with any counter offer you will see a spread between your target and their offer...
then with each offer/counter offer you make sure to reduce the spread between what your last offer was and what your next offer will be. it signals that further counter offers will result in decreasing results
Like If I said I wanted 10k and you said you'd pay 6k...that's a 4k spread...Lots of room for negotiating
So if i come back with 9k
Then I come back with 7k
I just increased my surrender concession from $1k to $2K
This sends the message further negotiation could result in more success.
The other party might even retract their 6k offer just because I was so enthusiastic to get close to their offer.
But if I dropped from $10,000 to $9,000; then from $9000 to $8700 I've stepped my concession from $1,000 to $300 sending the signal any further negotiation will be unproductive and may result in a wholesale rejection of the offer and a termination of the negotiation.
It then forces them to counter offer in that $300 spread at your price.
I know a guy who if you don't take his first offer he will raise it by a small margin, then by a larger margin to send the message "shutup and pay what I'm asking or pay more for wasting my time."
This all also establishes subliminally your control in the negotiation placing you at an advantage unless the other party is equally as determined
