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Determining Fault: Overview

One of the very first things adjusters look at when a personal injury claim is opened is to evaluate who is at fault for the accident.  The adjuster almost always looks to the police report for the answer. The adjuster looks at:

  1. What type of accident it was – rear-end collision, t-bone, etc.
  2. Whether their insured received a ticket
  3. What the narrative says – to see if they have an “excuse” to deny liability

Investigating police officers normally give the at-fault person a citation/ticket based on his or her failure to follow a traffic law.  This is usually what the insurance adjuster goes by when determining fault. Unless the police officer wrote down something that points to you being partially at fault, the insurance adjuster will most likely admit liability based on the police report.

Many police officers write down the statute (traffic law) that the other driver violated. You should Google this statute and print off a copy to put in your Claim Binder for use later in your Demand Letter. You will use the statute’s language in talking to the adjuster and when writing your demand to show that you know the process and have done the work to maximize your claim.

You can also look for additional theories of liability in addition to what the officer wrote a ticket for.  Most states publish their driver manuals online. You can download a copy and analyze it for everything the other driver did wrong.  A lot of times you can pile on more than one traffic law violation when arguing the other person was at fault.  For example, if someone rear-ends you they may be liable for: 1) failing to make a proper lookout, 2) failing to keep their vehicle under control, 3) operating a vehicle while distracted, and 4) failing to drive at a reasonable speed for conditions and hazards.  The more theories of fault you come up with, the stronger your claim will become.

When you talk to the adjuster the first time, you want to ask them “Are you accepting liability?”  You are essentially asking them whether liability is in dispute or whether you can look past liability to only talking about damages.

Admitted Liability

Most people using ClaimClinic will have an actionable claim because the majority of auto accidents involve what is known as “admitted liability” type situations.  These are where the insurance companies must admit their driver was at fault based on the facts of how the accident occurred.  There are 2 common types of admitted liability accidents:

  1. Rear end collision – the driver who runs into the back of your car is almost always at fault.  That driver has a legal duty to maintain a proper lookout for your car slowing or stopping and also for keeping a safe distance between his car and yours.  The only common excuse the adjuster has for denying liability is that there was some sort of sudden emergency, such as brake failure or another car coming into his driver’s lane.
  2. Failure to yield while turning left – a person making a left hand turn almost always has a legal duty to maintain a proper lookout for traffic and to yield to that traffic before making the turn.  The most common excuse adjusters use to deny this type of liability is where there is a dispute over who had a green light at intersections.  They will get this “excuse” from the narrative portion of the police report.

If your claim involves one of these types of admitted liability situations, chances are you and the adjuster will spend almost zero time talking about fault, because it is a given it was the other driver’s fault.
If your accident occurred in a different way, usually the police report will provide you with enough evidence to prove liability.  The adjuster is simply going to see who the officer gave the ticket to and whether the report has any notes indicating its Insured had an excuse or legal justification for the accident.

Admitting liability only means the adjuster is admitting the accident was their driver’s fault.  They will still dispute the nature of your injuries and your claim’s value.

No-Fault Claims

Some states are “no-fault” states – see the list here.    It does not matter whose fault the accident was.  You can get your medical bills paid even if the accident was your fault.  No-fault eliminates personal injury claims in small car accidents regardless of fault, hence the phrase no-fault.  Your insurance company will be the one paying you.  There are, however, ways to get around the no-fault system and have your pain and suffering compensated. Go read about Personal Injury Protection insurance to learn how.

Proving Disputed Liability

If an adjuster has an argument that the accident was not their Insured’s (i.e. other driver they insure) fault, they will usually deny your claim.  There are a couple of things you can investigate to try to prove fault in your favor.  If you are unable to get the adjuster to change their mind, your only recourse will be to hire a lawyer and let her litigate fault.

Location of Car Damage

You can use the location of damage to both your car and the other drivers car to show where in the turn the other driver was when the accident occurred. This will help you argue the other driver failed to see you or began his turn too late – both failure to yield situations.

Eye Witnesses

Witnesses to your accident will normally be able to confirm your version of the story or the other persons. If the police report states that you and the other driver have different versions of how the accident occurred, the insurance adjuster will usually deny liability without talking to any witnesses. Adjusters are simply too busy and overworked to make phone calls and find witnesses. If they have a statement in the police report showing their driver saying he was not at fault, that is usually enough for the adjuster to deny liability. It is up to you to get past the the adjuster’s lazy position by seeking out and obtaining favorable statements from the witnesses. You need to track down and get statements from witnesses, which you will then send to the adjuster with a request that he reevaluate liability.

Traffic Light Timing Reports

This is a more sophisticated investigation. Department of Transportation departments in each state maintain reports that show how a traffic light at an intersection cycles through the red, yellow, and green lights. The report will show in what order green arrows come on and for how long the arrow stays lit. The reports also show whether traffic has to trigger a light to turn color. You can work through a traffic light sequencing report to show that the other driver’s story regarding the color of lights is impossible. To get the traffic light sequencing report, you should call your Department of Transportation and find out address and contact person to request the report. You can then either write that person/department a letter or you can use an Open Records Request.

Partially Your Fault

Sometimes you may be partially at fault for an accident.  When you bare some of the blame for the accident, this is called “contributory negligence.” Depending on your state’s contributory negligence system, you can still recover even though you are partially at fault.

States handle contributory negligence in one of two ways. In some states, you will collect compensation based on the percentage of the other persons fault  without regard for how much you are at fault. The following states work in this manner: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington.

In other states you can only collect if you’re contributory negligence is less than half. In other words, the other person has to be the majority at fault.  This is known as “modified comparative negligence.” In these states, you will only collect if you are less at fault than the other person:Arkansas, Colorado, Connecticut, Delaware, Georgia, polite, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.  you’ll still only recover in amount reduced by your portion of fault.

Finally in some states the comparative negligence rule is very harsh.   In Alabama, District of Columbia, Maryland, North Carolina and Virginia you cannot recover at all if you are the least bit contributorily negligent.
We recommend that you do not negotiate or attempt to change the insurance company’s opinion regarding your percentage of fault until the very end of settlement negotiations. Your main concern in handling your own personal injury claim is to demand and negotiate the full value of your claim.  You want to come to an agreement with the insurance adjuster as to what that full value number is first before there is any talk of reducing it by your percentage of fault. Your percentage of fault is another negotiating point.  Negotiate the full value of your case and then negotiate what your percentage of fault is.  This way helps to maximize your claim by not discounting the full and fair value by a percentage of contributory negligence until the very end.

Witnesses can be very valuable in fighting the insurance company’s apportionment of fault. If there were witnesses to the accident, you should seek them out and get written statements from them. These will be part of your demand package and will show the adjuster that you have evidence that you were not at fault.

Here are some rebuttals to the adjuster saying the accident was your fault:

  • Police report does not say I am at fault – here the adjuster is making a conclusion that the investigating officer did not put in his/her report
  • I wasn’t given a citation – If I was at fault, why didn’t the officer give me a ticket?

Multi-Car Fault

Your accident may have more than one at-fault driver.  If this is the case, you first need to notify EVERY insurance company noted on the police report that you have a claim.  The insurance companies will then normally talk amongst themselves and work out a percentage of fault that each of their drivers is responsible for.  You still demand the full value of your personal injury claim and then let the multiple insurance companies figure out which one is going to contribute to that amount.

Adjuster Says “Not Legally At Fault”

In rare cases, an adjuster will tell you their driver does not have any “legal liability.”  This is different from saying the accident is partly your fault.  The adjuster is saying their driver did not break any law or statute that would make him/her responsible, or that there is a law or statute that excuses their driver’s conduct.

Do not take the adjuster’s word for it.  Demand they send you a copy of the law, statute, ordinance, or other “legal rule” they are claiming gets their driver off the hook.

Effect Of Workers Compensation

If you were driving on business or for your employer at the time of the wreck, you most likely will have a claim against the at fault driver in addition to receiving workers compensation benefits.  You get to in essence double dip.  You will get compensated through your employer and also by the at-fault driver’s insurance company.   If you fall into this category, you will investigate, document, and settle your personal injury claim just like everyone else.

NOTE:  If you receive workers compensation benefits and recover from the at fault driver, you may have to pay back some of the workers compensation money.  This is called “subrogation” and it varies state-by-state.  For example, in Georgia, a claimant only has to repay workers compensation if he/she was made “completely whole.”  This almost never happens because the only time a person is paid 100% of their claim is when a jury gets to decide what that number is.  Otherwise, settlement is almost always a compromise, where you are settling for less than the full value of your claim and are therefore not made completely whole.  You need to consult a lawyer in your state to learn what the rules and case law say regarding whether you need to repay the workers compensation money.  And even if you do, most of the time you can pay less than the full amount.  Remember, in personal injury claims everything is negotiable!

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