The Tricky Business Of Determining Fault After A Car Accident

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Let’s start with a bang: One vehicle hits another. But who’s at fault? The result will be decided in different places. It could be decided on the road where it happened, in a police report, by the auto insurance companies, in arbitration or in court by a jury.

And it could happen to you. The National Highway Traffic Safety Administration (NHTSA) says there were 5.25 million police-reported crashes in 2020, with about 2.28 million people injured and nearly 39,000 people killed that year. Over 3.6 million of the crashes had only property damage.

But it doesn’t mean that those more than 3.6 million property damage accidents were painless. They likely kicked off a complicated and legalistic process involving feuding drivers, penny-pinching insurers and lawyers using terms like “subrogation” and “pure contributory negligence.” What actually transpires, and how much money you receive, often depends on the state where it happened.

When it comes to deciding who’s to blame for a car accident, here are five methods and tips on how to navigate them:

Method No. 1: The Drivers Involved Decide

While still at the scene of the accident, the drivers involved could decide.

“There’s a natural instinct for drivers to ‘point fingers’ at each other as they exchange information,” says accident attorney Gary Wickert of Matthiesen, Wickert & Lehrer. This may be harmful. Sometimes drivers are so shaken up or intimidated that they point the finger at themselves. In the heat of the moment, either driver could admit to being at fault.

“They may make an admission such as, ‘I didn’t see the stop sign,’” says Wickert. But that’s not a good idea. It could come back to haunt you if you go to court. “There are consequences to being too forthcoming,” warns Wickert.

So what should you do?

  • Take cell phone pictures before the crash vehicles are moved and note the names and phone numbers of those involved, including witnesses.
  • Ask the other driver, or drivers, to show you their licenses and insurance ID cards.
  • Make sure to record the make and model of all the cars involved.
  • Document the location of the accident, time of day and weather conditions.
  • If necessary, wait for the police to arrive.

Method No. 2: The Police Report Decides

When the police arrive on the scene of an accident, an officer’s first job is to figure out if anyone is hurt and, if so, call for medical help. The second is to assess the scene—note the damage to all vehicles involved and, equally important, see where they are now situated. This often makes it clear as to who actually is at fault.

For example, if one vehicle careened through a stop sign and “T-boned” the other, or if one was merely stopped at a red light and hit from behind, then the end result is pretty clear. The officer will usually make a diagram of the scene.

Special circumstances could have caused the accident, such as cell phone use, speeding or driving under the influence (DUI). And that’s why the officer should talk to any witnesses, including those who were in the vehicles involved in the accident. The officer will probably ask many of the same questions that would be asked in court. Have your story straight and don’t utter spontaneous admissions.

Bear in mind that a police report is not infallible. But it is a public document that car insurance companies will undoubtedly read. And you should too—when it becomes available. If no police officer was at the scene, then go to the nearest police station to file an incident report in person, or file it later online.

“Filing an official police report can help, especially if the other driver involved decides to sue you for damages or medical injuries, or there is more damage done to your vehicle than originally thought,” says vice president Loretta Worters of the Insurance Information Institute, which represents many auto insurers. “If you do file an insurance claim, you’ll need to have that report.”

Method No. 3: The Insurance Companies Decide

Insurance claims are getting much easier to file, including virtual car insurance claims accompanied by pictures of the accident. Algorithms will instantaneously evaluate the damage.

When all those involved in the accident have filed claims with their insurance companies, it’s up to the insurers to decide the outcome. If you carry collision coverage, you can file a claim for your car damage.

If the other driver is indeed at fault, then your insurer will seek restitution from the other driver’s insurer using a process known as “subrogation.” Simply put: Your insurer will ask the other driver’s insurer to reimburse it for the collision claim and you’ll get a refund of your deductible.

If it only involves monetary damages, “take it to small claims court,” suggests Robert Passmore, vice president of personal lines at American Property Casualty Insurance Association. The average property damage liability claim was $4,424 in 2018 (the most recent data available), according to the National Association of Insurance Commissioners.

Small claims courts nationwide often permit lawsuits up to $10,000, although some are limited to much less, such as $2,500.

But winning your case can be onerous and downright nasty. “Insurance companies have their own personalities, just like people,” says Wickert. “Some pay because they want it settled, while others have a scorched earth policy and fight for every dime.”

Method No. 4: Arbitration Decides

There’s an easy way for insurers to resolve this issue when they don’t agree. The dispute goes to Arbitration Forums Inc., a private company that decides the extent of the damage and who pays. And the majority of all large insurers do business this way.

Arbitration reduces the number of lawsuits, making it less cumbersome and costly for insurers. “The process is done electronically,” says Passmore, who served as an arbitrator until 2010. “In the last one, we all sat down at a computer and decided.”

Method No. 5: A Jury Decides

If you do go to court, the case will be decided by a jury—the ultimate arbitrator of fault. “Once it’s decided, even the U.S. Supreme Court can’t change the facts as the jury has determined them,” says Wickert.

But very few cases even get that far. From his experience, Passmore estimates only 1% to 2% of claims involve lawsuits. The lengthy and expensive process of getting a case to court and trying it before a jury inevitably means that most will be settled before a trial, unless a lot of money or medical expenses are at stake.

And there’s another hurdle known as “contributory negligence.” As the plaintiff seeking damages, you may have contributed to the accident. Although your vehicle was slammed by the other driver, maybe you should have paid closer attention when switching lanes after you got on the interstate.

Even if you’re only 1% at fault, you can’t sue someone else over a car accident in the “pure contributory negligence” states of Alabama, Maryland, North Carolina or Virginia, as well as in the District of Columbia. “It sounds draconian, but it’s the law,” says Wickert, whose law firm keeps a chart of contributory negligence laws in each state.

Most states have a “comparative fault” standard, which apportions blame. For example, if the other driver was 75% responsible for the crash, you can have three-quarters of your damages paid by them. But the other driver could sue you for the 25% of the accident you allegedly caused.

There’s also a “modified comparative fault” standard, which denies the more guilty party the right to collect anything from the other party. “If you’re more than 50 percent at fault, you’re unlikely to recover anything,” says Passmore.

And the legal entanglement becomes even more extreme when multiple vehicles are involved. Or in no-fault insurance states like Michigan, where your own insurance company is required to pay all your accident expenses. You can only sue someone else if you have “serious” injuries such as permanent disfigurement.

If all this seems confusing, remember that it’s not your fault. “These laws are always in a state of flux,” says Wickert.

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