OHTA.ca

Tonight, while enjoying dinner with our family at a local Chinese restaurant, we were asked by our waitress if we had a black Hyundai in the parking lot. We said yes and she asked us to come out front. There was a small woman in her 50's who stated that she had backed into our car and wanted to let us know as the alarm went off. We went outside and could see her yellow Nissan XTerra sitting in the middle of the parking lot and our car several feet behind.

Earlier, we backed our car perfectly straight in the parking space and this parking lot was very generous in space for people to pull in and out of the parking spaces. Clearly this woman carelessly wheeled out of her spot straight into the front passenger side of my new 2012 car. My first question to her was "are you hurt" and she said "no". My front bumper was scraped heavily and the hood of my car gouged and deeped dented/crinkled. Her vehicle had a thick black plastic bumper that had a scuff mark that blended in with all the other scuff marks. She quickly said that she had no damage at all and offered to pay for the damages and did not want to call police. She was very nervous, poor eye contact, jittery. We could see that there would easily be $1000 + in damages to the bumper and hood. She expressed how badly she felt but was in a real hurry to leave and repeatedly said that she was good for the money etc. Our instinct was not to trust her based on her dress in torn jeans and unusual behaviour that we found suspicious and wondered if she was impaired somehow. My husband said it's going to cost alot more than a $1000 to fix and we legally have to report it. She was adament that she didn't care how much it would cost and that she would be good for it and we told her that the cost would be more than we even thought and told that we did not wish to put her through the hardship of an expensive repair. She still insisted she didn't care how much it was and this made us even more sceptical. She brought out her insurance slip and ownership and I used my phone to take pictures of it. My husband and I ultimately decided to call the OPP and asked her to call since she created the accident. She quicly returned to her truck and appeared to be leaving. She told my husband that she didn't know how to call the police and began swearing and lit up a cigarette and told him to call and was trying to back up to get out of there. She was unable to leave as I stood behind her vehicle and I quickly took pictures of her bumper and licence plate and called the OPP myself and reported it. The station is located within sight of the parking lot and an officer arrived minutes later. A 2nd officer arrived and placed her in the back of his cruiser.

This officer informed us that due to Ontario Traffic Law - and being in a parking lot, is considered no-fault and goes through insurance 50/50. We weren't parked illegally or even in a compromising parking spot and we weren't even in or near the car when it happened. She admitted total responsibility for the incident. We were each issued an incident report sheet with a number to report to insurance. Her comment was, "I told you that we didn't need to report it police". My husband and I as well as my in-laws who finished ejoying supper with our kids were quite shocked that she was not deemed at fault and it suddenly struck us that our insurance will be affected to cover our repairs and she had no damage so she would be totally unaffected.

As we parted ways, she stopped and put her window down and offered to pay our deductable and again expressed how sorry she was and gave us her phone number. We are happy that she was decent enough to come into the restaurant to report it and offer to pay.

So, now we are wondering a few things since we did the legal obligation to report the accident to police and she was the only driver listed in the report as our car was vacant.

- Is it mandatory for us to now submit an insurance claim since there is a police report?

- Will our and her insurance discuss who is at fault and deem her 100% at fault?

- Is it possible for our insurance companies make it 50/50 and make us both pay?

- If the claim goes through our insurance - even though no fault - will this cause an premium increase? (This would be hugely wrong!)

- Do we try and give her the benefit of a doubt to pay for the damages? and not go through insurance? Do we have to call insurance regardless?

Any thoughts or comments would be greatly appreciated.

I believe the officer was incorrect. The fault determination rules state the following:

This section applies with respect to incidents in parking lots. The degree of fault of a driver involved in an incident on a thoroughfare shall be determined in accordance with this Regulation as if the thoroughfare were a road.

The rules also state:

If automobile "A" is parked when it is struck by automobile "B", the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.

The exception to the above rule is when a vehicle is illegally parked.

I agree with Stanton. The Fault Determination Rules are actually quite clear on this matter and you are 0% at fault for the crash. You want to review sections 16 and 17 of the Fault Determination Rules.

JailRN69 wrote:Clearly this woman carelessly wheeled out of her spot straight into the front passenger side of my new 2012 car.

Clearly she sucks at driving (stating the obvious).

JailRN69 wrote:- Is it mandatory for us to now submit an insurance claim since there is a police report?

If your insurance contract states that you must report any collisions or hits on your car, then yes. (Some do, some don't.) However, you are only required to file a claim if you want insurance to cover the damages, etc. You have up to 7 days from the incident to file the claim. Since you were 0% at fault, insurance should cover the whole thing and (in most cases) not go up. Hers would go up, though, unless she has "accident forgiveness" or something of the sort... or she pays out of pocket.

JailRN69 wrote:- Will our and her insurance discuss who is at fault and deem her 100% at fault?

According to the Fault Determination Rules, yes. Insurance companies don't have a choice in the matter: They MUST follow the FDR.

JailRN69 wrote:- If the claim goes through our insurance - even though no fault - will this cause an premium increase? (This would be hugely wrong!)

Probably not. I got sideswiped by a drunk driver who was running the shoulder on the 401 while being chased by the OPP. Result: No premium increase and I didn't have to pay the deductible, either. The adjuster's words were "because you were 0% at fault, the other driver's insurance will cover the deductible." Now that might've not been a completely accurate statement, but at the end of the day I paid $0 and got my car back in less than a week. The car repair shop charged me $850 (deductible) but my insurance company sent me a cheque for the same amount a couple of days later, once they confirmed that my version of events was accurate. (Didn't take much...)

JailRN69 wrote:- Do we try and give her the benefit of a doubt to pay for the damages? and not go through insurance? Do we have to call insurance regardless?

Go get a couple of quotes and call her. Tell her that she has to pay the repair shop directly. (This protects both you and her.) I'd get those quotes ASAP and discuss how she's going to pay the shop.

As mentioned above, you have up to 7 days to file a claim. There is some inherent risk if she promises to pay, then doesn't show up. I'd probably at least call your insurance broker and see what he/she advises. After your broker immediately tells you that you should go through insurance, stop and force him/her to give you a full run-down of what the options are. This gives you some protection and options if she doesn't pay, or somehow her phone doesn't seem to work anymore (seen that a few times before).

Is it illegal to not report a small collision to police/insurance and just go through an agreement with the two parties to pay the repairs themselves? If so what are the penalties?

Thanks for the input.

This morning, we received a quote of $2400 that includes replacement of the hood, repair and paint of the front bumper and new headlight assembly. Our horn no longer works as well. I called her and advside of our actions and that she can pay for the bill or submit through insurance - her choice at present as it affects her insurance. Based on the advise and experience of our our bodyshop, we have given her until this evening to provide us a decision on how she wishes to proceed and must have payment by tomorrow or we will go through insurance. We have until Friday to report to insurance.

The more we think about it, we are certain that she was impaired somehow. After she struck our car, she left her SUV in the middleof the parking lot obstructing traffic while she came in to report it. She had to have back up straight directly into our car about 20+ feet and failed to turn while backing? She insisted that police not be called and insisted she was good for payment as she worked for the plants (refinery) and today she says she doesn't work... Glad we did the right thing and call the police as we'll be covered one way or another.

The police report states that are vehicle was unoccupied but no accident details - weird... I've made my own documentation on the incident and have photos as well. I'm thinking that beacuse it was a "parking lot incident", the Ontario Traffic Law does not apply and it is left to Insurance to determine the "Fault Determination" and we should be 0% at fault.

I'll update once all is settled. A huge inconvenience for sure.

Typically the copy of the police report you receive at the scene isn't complete, it's just an information exchange. Police will file the final report at a later time which includes accident diagrams and descriptions of what happened. Typically there's a fee associated with obtaining a copy so let your insurance company look after it.

You're correct in that for the most part, the HTA does not apply on private property (just a few exceptions). Regardless, insurance companies go by the fault determination rules first (even on the roadway) unless there's some exceptional circumstance.

Update.

Well, she returned our call and left a message to go through insurance. Big surprise especially since she insisted that she was "good for the money". Apparently, had we let her leave as she intended then the police could lay charges of leaving the scene of an accident. Glad we covered our butts. My insurance was great and reported that it sounds like she was at fault and would not affect our insurance. They did ask if we had witnesses and I reported that there were several restaurant employees that witnessed her telling us that she backed into our car - but didnot ask for statements.

Car is in the shop getting fixed right now. Such and inconvenience and sad it's a new car! Thanks for the insight.

That's what we're here for. An unfortunate situation, but at least your insurance won't go up and your car will be fixed.

And I don't think any of us is surprised at how it ended... including you.