How is Fault Determined After an Accident?

Despite what you might have heard, car insurance companies, not police officers, determine who was responsible in an auto incident. Law enforcement officers can issue citations after the collision occurs based on violations of traffic laws, but these citations are not the ultimate authority. Rather, citations are just one of the many pieces of evidence auto insurers collect in their investigations to determine liability. Below, we'll discuss how car insurance companies go about determining which driver was responsible, to what degree and why. We'll also address the determination of responsibility in a few more complicated scenarios, such as collisions that occur when both drivers are backing up and what happens when carriers disagree on the assignation of liability.

Understanding the Various Types

With any auto insurance claim, fault is an integral element for both insurance and legal purposes. When the circumstances of an auto incident are unclear as to which motorist was responsible, fault is assigned among the parties involved according to state law regarding contributory or comparative negligence. In the event that liability is shared evenly in an crash, the auto insurer then determines the percentages of liability for each person involved.

Before you can make sense of the types of fault, however, you'll need a basic understanding of contributory and comparative negligence. Pure contributory negligence refers to a system in which the injured party forfeits the right to recover any money for damages or injuries if he/she was assigned any blame at all for the accident. A handful of states still adhere to this system, including Washington, D.C., Maryland, Virginia, Alabama, and North Carolina.

However, in most states, some type of proportional comparative negligence system exists that enables the injured person to recover a limited amount of damages even if he/she was partly responsible for the accident. Currently in the U.S., three separate such systems are used: pure comparative, proportional comparative at 51 percent, and proportional comparative fault at 50 percent. Each of these is explained below.

• Pure comparative. In states with a pure comparative fault system, if the injured person was partly to blame for his/her own injuries, the injured party's damages are reduced by the proportion of his/her responsibility. For instance, say Carlos suffered injuries in an auto incident for which he was found 80 percent to blame. Damages for Carlos' injuries total $10,000. With pure comparative fault, Carlos will be able to recover $10,000 minus 80 percent for his portion of liability, which amounts to $2,000.
• Proportional comparative at 51 percent. States with a proportional comparative system prohibit the recovery of damages for injured parties found more than 51 percent to blame for the incident. That is, an injured party cannot sue or file a liability claim against another driver if he/she were found more than 51 percent responsible for the collision. For instance, David hit Marilyn's vehicle while traveling 25 mph over the speed limit as Marilyn was trying to cross the road. Although Marilyn was partly to blame for failing to wait to cross until the road was clear, the car insurance company assigned 60 percent of the responsibility to David because of the excessive speed at which he was traveling. While David suffered a broken leg from the collision, he cannot recover compensation for the injury because he was responsible for more than 51 percent.
• Proportional comparative at 50 percent. Under this system, any injured party who is less than 50 percent to blame for the auto accident may recover damages. Conversely, motorists found 50 percent or more responsible cannot recover compensation for injuries. For example, Tony and Maria hit each other's vehicles while pulling out of their parking spaces simultaneously. Both motorists were not looking closely enough as they backed up, so they are each assigned 50 percent responsible for the accident. Neither Tony nor Maria may recover damages in this case because they were responsible for 50 percent or more in the incident.

The Process of Determining Accident Responsibility

Except in the few states with a pure contributory negligence system, auto insurance companies examine each party's negligence and assign a percentage of liability accordingly. To do so, car insurers perform a negligence analysis, examining four elements: driver duty, breaches, causation, and compensation. To assign blame to a particular motorist, all four criteria must be satisfied. If one or more of the elements is missing, then that motorist cannot be found at responsible for the collision. If all four criteria are met, then the motorist may be found liable, but the insurer will still need to determine the extent to which the driver was to blame. We've outlined each of the four elements below.

• Driver duty. When someone steps behind the wheel of a vehicle, he/she assumes certain duties as a motorist. Generally, these duties are defined as looking out, obeying the rules of the road, and avoiding. In other words, motorists have an obligation to pay attention, heed all driving laws, and avoid accidents if at all possible even if the other driver did something illegal and/or negligent.
• Breach. To assign accountability, the insurer must find that a driver breached one or more of the duties mentioned above. Unless a breach occurred, a motorist cannot be found at fault. One or more breaches of duty, on the other hand, will result in at least partial blame for the collision.
• Causation. Before determining negligence, the car insurance company must demonstrate that the breach of duty that occurred caused the ensuing damages or injuries. Most providers complete this step relatively quickly, which makes causation an ideal defense for at-fault drivers in liability lawsuits.
• Damages. The final step in the accident determination process is an examination of the accident. Damages can refer to either physical injury or damage to property. All damages have to be related to the driver's breach of duty for the insurer's determination to be valid. For instance, if you suffered knee pain and a neck injury as a result of a crash, the insurer will have to complete the aforementioned analysis twice—once for your knee pain and a second time for your neck injury.

Dealing with Ambiguous Situations

Some determinations are not as cut and dry as others. Certain auto incidents, like rear-end collisions or back-up accidents, are far more complex for assignation purposes. In these nebulous scenarios, insurance companies might end up disagreeing on the party responsible, in which case the claim would have to proceed to arbitration or small claims court depending on its nature. Here are a few situations in which complications may arise in determining accountability:

• Rear-end accidents. In rear-end incidents, there is typically a presumption of guilt for the vehicle in the rear. The motorist in back was almost always speeding, tailgating, or simply not paying attention at the time of the incident, all of which support a presumption of blame. However, that is not to say the party in front never shares any of the blame in a rear-end collision. In fact, several situations exist in which the vehicle in the front may be equally or at least partially to blame for a rear end auto accident, including faulty signal lights, receiving a push from behind by another vehicle, reckless or negligent driving on the rear-ended driver's part, or the vehicle struck was backing up or became suddenly disabled in traffic.
• Back-up collisions. Because it is the responsibility of the vehicle backing up to yield to oncoming traffic, any ensuing collisions are almost always exclusively the fault of the motorist who was backing up at the time. The assignation of blame becomes more complex, however, when both parties involved were backing up simultaneously. In that situation, both parties would almost always share the responsibility equally, but a few exceptions do exist when one motorist: backed out at an excessive speed, failed to honk to warn the other party of his/her position, didn't pay attention (talking on a cell phone, not looking behind the vehicle, etc.), or backed up in the wrong direction.
• When providers disagree. Car insurance companies may disagree on which motorist caused the crash, which can delay the payout of your claim. When this happens, carriers typically negotiate between themselves to reach a mutually agreeable determination. These negotiations may delay the settlement of your claim, but insurers are bound by law to pay out your settlement in an expeditious and fair manner. Further, disagreements over determinations are rare, as car insurers must abide by state statutes that govern such determinations. The providers cannot refuse your claim because of a disagreement; rather, it is more likely that you will receive a lower settlement than you expected. However, you can always enter arbitration in the event of an unfair settlement or, if the circumstances permit, file suit against the offending carrier or driver.