Resolve Livestock Collision Disputes

In farming areas, livestock collisions are unfortunately fairly common. Animals can wander onto the road where they are struck by passing vehicles. Depending on your state, a driver may or may not be able to sue for injuries. In some states, livestock have the right of way, which means the driver, no matter how injured, cannot get compensation for their injuries. In order to resolve a dispute, you should first contact your insurance company. Then you can prepare for settlement negotiations by analyzing the factual circumstances and the relevant law. Where settlement is impossible, you may have to go to court to resolve the dispute.

Steps

Contacting Your Insurer

1. Check that you are covered with insurance. If you are the driver, then you probably have auto insurance. However, you should check whether you have collision coverage. This type of coverage will pay to repair your car after the crash.
   • If you are the livestock owner, then you should check whether you have general farm insurance coverage. Take out your copy of the policy and check to see whether the policy covers collisions. It should also pay for the defense of any lawsuit.
2. Contact your insurance agent. Call your insurance agent and report the accident. You will probably have to provide certain information. Typically, insurers request the following:
   • your policy number
   • your contact information (phone and address)
   • the date and location of the collision
   • a description of the collision
3. Get a police report. You need to report the accident to the police. Since the livestock owner probably doesn’t know that the animal escaped, the person who collided with it should call the police as soon as possible. An officer will come out to write up a police report.
   • You should get a copy of this report. Your insurer will want a copy. You will also need a copy if you have a lawsuit.
   • The police report can also identify any witnesses to the collision. Read the report to identify these witnesses. You might need them to testify in a lawsuit.

Analyzing the Legal Issues

1. Read your state law. Most states should have laws on animal collisions with moving vehicles. You can find your law by checking online or by visiting your nearest law library, which could be at the courthouse.
   • In some states, there are “open range” laws. This means that cattle and other animals have the right of way on roads. If a driver hits the cattle, then the driver must pay for the loss of the animal and can’t sue for their injuries.
   • If you are not in an “open range” state, then a driver can get compensated for their injuries if they can show that the livestock owner was “negligent” in keeping the livestock off the road.
2. Understand negligence. Negligence is the legal cause of action most people will sue under. Negligence exists whenever a person owes you a duty of reasonable care and fails to exercise that reasonable care. If you are injured because of that failure, then you have a case for negligence.
   • In order to find negligence, the livestock owner must have intentionally let the animal walk on the highway or have been sufficiently careless keeping it penned in. For example, a livestock owner who doesn’t check or repair broken fences has probably been negligent. Also, an owner who leaves a barn door open or a gate unhitched has typically been negligent.
3. Write down your memories. You are an important witness, whether you were driving the vehicle or if you own the livestock. Write down relevant memories as best as you can. For example, note the following:
   • If you were the driver, then explain the crash. Describe how fast you were going and whether you had enough time to swerve. Also note if anyone was on the road with the animal.
   • If you were the livestock owner, then note what actions you took to keep your livestock from escaping. Write down how often you checked fences and whether you closed the gate to keep the livestock in. Also note whether you have had livestock escape before and what action you took to keep it from happening again.
4. Meet with an attorney. You have options for how to resolve the dispute. If you are covered by insurance, then your insurer will probably take the lead on reaching a settlement. However, if you don’t have insurance, then you might want to resolve the dispute using negotiation or by going to court. You can also go to court if the insurer won’t meet your demands. You should discuss your options with a qualified attorney.
   • You can find an attorney by contacting your local or state bar association and asking for a referral. Remember to request a Find a Good Personal Injury Lawyer.
   • Once you have a referral, call up the attorney and ask to schedule a consultation. Check how much the attorney charges for the consultation.

Settling the Dispute

1. Estimate the value of the injury. Settlement negotiations will focus on money. For that reason, you need to understand how much the injury is worth in a lawsuit. For example, if the value of the injury is $100,000, then you want to know that fact before heading into settlement discussions.
   • If the driver is injured, then they can be compensated for any damage to their vehicle, medical bills, pain and suffering, emotional distress, and lost wages.
   • If you are in an open-range state, then the livestock owner can get compensation for the value of the livestock.
2. Analyze your best alternative to a negotiated agreement. Settlement is voluntary, and either side can get up and walk away if they can’t come to an agreement. You should figure out what your best alternative is to settlement. This is called your BATNA.
   • For example, you might be the driver who has a strong case for negligence against the livestock owner. In this situation, going to trial might be your best alternative. For this reason, you can be aggressive in negotiations, and you might not want to settle unless the livestock owner can meet your demands.
   • However, you might not have strong proof that the livestock owner was negligent. In this situation, you might be less aggressive because your best alternative isn’t a slam dunk.
3. Settle on a your “walkaway” point. Because negotiation is voluntary, you should identify the absolute minimum you are willing to settle for. This is your walkaway point. If the other side can’t meet it, then you end negotiations.
   • Your walkaway point will largely depend on the attractiveness of your BATNA. As the driver, a stronger alternative means you can probably get close to the full value of the injury in a settlement.
   • However, as the livestock owner, you might be able to pay a lot less if you think the driver has a weak alternative.
4. Write a demand letter if you were injured. The person who was injured needs to send a demand letter to the other side. In this letter, you explain the incident. If you are the driver, then you will want to talk about the medical treatment you have received, as well as the repairs done to your car.
   • Your claims agent or lawyer will probably handle negotiation for you. However, it is also possible that you are negotiating on your own. If so, then see Write a Demand Letter Instead of Hiring an Attorney for more information.
5. Continue to negotiate. Negotiation consists of back-and-forth, with one side making an offer and then the other making a counteroffer. The purpose of negotiation is to reach an agreement by slowly working towards a point you both can agree to.
6. Draft a settlement agreement. If you reach agreement, then the claims agent should memorialize the agreement in a document called a “settlement agreement.” The agreement should contain all of the necessary terms of the settlement.
   • If you are the person having to pay money to the other side, then make sure to get a “release” as part of the settlement agreement. This release is a promise not to sue you again based on the same incident.
   • If you were negotiating on your own, then see Write a Settlement Agreement for tips on how to draft this document.

Resolving the Dispute in Court

1. Think about hiring a lawyer. Although you might have consulted with a lawyer soon after the collision, you should also think about hiring the lawyer to represent you. Lawsuits can be complicated, and you would benefit from an experienced lawyer’s expertise.
   • If costs are a concern, then ask the lawyer if they offer “discrete task representation,” also called “unbundled” legal services. Under this arrangement, the lawyer only does the work you give them while you handle the rest of the case. For example, you might want them only to represent you at trial, or to coach you. Using unbundled legal services is a good way to keep legal bills low.
2. Start the lawsuit. The person who has been injured will bring the lawsuit. Unless you are in an “open range” state, most lawsuits will be started by the person driving the car that hit the livestock. This person is the “plaintiff,” and they will file a “complaint” in court. The plaintiff then arranges for a copy of the complaint and a “summons” to be served on the defendant.
   • If you are sued, then you will need to file a response to the complaint. Generally, you will file an “answer,” in which you respond to each allegation made in the complaint. You should admit, deny, or claim insufficient knowledge to admit or deny each individual allegation.
   • A defendant can also raise certain affirmative defenses. For example, the plaintiff might have waited too long to sue. Each state has a “statute of limitations” for negligence, which will differ by state.
3. Engage in discovery. Most lawsuits have a lengthy fact-finding period called “discovery.” Discovery is your chance to get information that will be helpful to your case. You can ask the other side to answer questions under oath and to produce documents.
   • If you are suing the livestock owner, then you will want to figure out exactly what the owner did to keep the livestock off the road. You can ask to inspect the property and look at fences or barns to see if they are in disrepair. You can also ask the owner how often they checked the fence.
   • If you are the livestock owner in an “open range” state, then you might not need much information in discovery. For example, the police report will serve as proof that the driver hit your livestock. You don’t have to prove that the driver was negligent. However, if you are defending yourself in a state that isn’t open range, then you will want documents from the plaintiff, such as copies of all medical records and bills. You will also want to ask questions about whether the plaintiff was driving carefully or whether they carelessly slammed into your livestock.
4. Defend against a motion for summary judgment. When discovery ends, most defendants will file a motion for summary judgment, which asks the court to end the litigation immediately and rule in their favor. To be successful, the defendant will have to argue that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. In other words, the defendant will have to persuade the judge that even if they made every factual assumption in your favor, you would still lose.
   • To defend against this motion, you can file a response. Your response will include evidence and affidavits that persuade the judge that there are factual issues that need to be hashed out in court.
   • Because summary judgment is available to end lawsuits that have no business being in court, you will defeat the defendant's motion so long as you convince the judge you have a chance of winning at trial.
5. Attempt to settle. Trials are incredibly expensive and time consuming. As a final effort to avoid one, you should reach out to the defendant at this point in the litigation and try to resolve your dispute. This is a good time to negotiate because both parties have gathered facts through discovery and have a good idea of what the judge is thinking after going through summary judgment proceedings. Some courts may even require settlement discussions. Start by talking informally with the defendant. If no agreement is reached, try alternative dispute resolution tactics.
   • Ask the defendant if they will submit to mediation. During mediation, a neutral third party will sit down with both parties, together, and attempt to find unique solutions. The mediator will not inject their own opinions and they will not take sides.
   • If mediation is unsuccessful, try non-binding arbitration. During arbitration, a judge-like third party will hear evidence presented by both parties. After evidence has been presented, the arbitrator will draft a written opinion, which will lay out who has the stronger case and what an award might look like. The parties can then decide whether they want to agree to the terms of the arbitrator's opinion.
6. Prepare for trial. At trial, you will present evidence in the form of documents and witness testimony. You should spend time carefully figuring out what evidence you want to present. If you are the driver, then you need to show that the other side was negligent. You also need to establish the full extent of your injuries. You might want to introduce the following evidence:
   • Your own testimony. You can testify about the collision and about how you are feeling.
   • The testimony of any passenger in your vehicle.
   • Medical records that show the extent of your injury.
   • Medical bills and receipts for treatment or prescription drugs.
7. Present evidence. At a trial, the person suing presents evidence first and then the defendant goes second. Each side gets to cross-examine the other side’s witnesses. If you have a lawyer, then they can handle the entire trial.
   • If you are representing yourself, then see Represent Yourself in Court (U.S.) for more information about how to conduct a trial.
8. Await the verdict. After all evidence has been presented, the judge will read the jury its instructions and let them retire to deliberate. If you didn’t request a jury, then the judge can issue the ruling from the bench.
9. Appeal if necessary. If you lose, you might want to appeal. With an appeal, you ask a higher court to review the verdict. If the appeals court finds that the judge made serious errors, then they can set aside the verdict.
   • Appeals are time-consuming and costly. For example, you will need to have transcripts of the trial created. This can cost thousands of dollars. You should discuss whether to appeal with an attorney.
   • Avoid delay. You generally get very little time to file your Notice of Appeal with the trial court. In many courts, you get only 30 days from the date final judgment is entered. In some states, you get even less time.

References

See also

• Make a Career Out of a Hobby Farm
• Work in Farm Brokerage
• Stay Safe on a Farm
• Start a CSA
• Sell a Sorghum Crop
• Reduce the Use of Pesticides in Farming
• Prevent Red Tide
• Operate Tyre Balers (VB 150TY)
• Move to a Small Farm While Working in The City
• Manage an Organic Chicken Farm

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