The issue of legal liability for auto accidents has given rise to a mountain of case law, spanning across many years. The rules are complex, and they can lead to contentious disputes. No one wants to accept fault if they can help it — especially the insurance companies. They typically try to dodge liability whenever they can.
So how do insurance companies determine fault? Are you totally at their mercy after an accident? What if you don’t agree with their assessment of fault? Read on to learn more.
The Legal Standard for Determining Fault: Negligence
In California, a driver is liable for an accident if it is caused by his or her negligence.
Negligence is a legal term that refers to careless, unreasonable, or unlawful actions (or an unreasonable lack of action). Common examples of negligent driving include speeding, texting while driving, drunk driving, and running a red light.
When insurance companies determine fault, they must make their determination according to the laws regarding negligence in the state where the accident happened.
Factors & Evidence the Insurance Companies Consider When Determining Fault
Insurance adjustors will consider a number of factors when deciding whether their policyholder was at fault for an accident. These include:
The Police Report
Believe it or not, the police report isn’t the only thing that matters when determining fault. While the official report provides valuable and highly credible evidence about how the accident happened, the reality is that the police officers don’t always get it right. Often, they weren’t there to see the accident itself, and they simply don’t have the time or the resources to fully investigate the accident there at the scene. So even though the police report carries a lot of weight, it’s only one of the factors at play when insurance companies determine fault.
The Things You Say and Do
Be cautious when talking about your auto accident, especially to insurance representatives. Anything you say could be used against you… and in the heat of the moment, it’s all too easy to slip up and say something you don’t mean. Even a polite apology might be misconstrued as an admission of fault. Your social media matters too — the insurance company will try to crawl through your online activity to find some evidence of fault.
The insurance company won’t take your word alone. They will want to talk to as many witnesses as possible, including the other driver, any passengers or pedestrians, and other people who might have been nearby to witness the accident first-hand.
Photos & Videos
Even though the issue of fault is ultimately a legal issue, it is informed by physical evidence. Photographs and video footage provide some of the most reliable and detailed proof of what happened in an accident. By looking at detailed pictures of vehicle damage, for example, experts are sometimes (though not always) able to determine what must have happened to cause damages of that kind. The insurance adjustors might receive photos or video from a variety of sources, whether it’s from you, the other driver, third-party witnesses, or nearby traffic cams or surveillance footage.
Recorded Statements, Depositions, and Interrogatories
Depending on how far your insurance claim goes, you may be asked to participate in a recorded statement (where the insurance company sound-records your verbal account of the accident, giving them an opportunity to “trap” you into a contradictory statement later), deposition (where you are questioned under oath and your answers are recorded in a transcript), or interrogatories (where you answer in-depth questions in writing).
The insurance company will likely try to talk you into giving a recorded statement early on — sometimes within hours or days of the accident. It’s important that you talk with your own personal injury attorney first. Giving a recorded statement without independent legal representation can be a big mistake.
Depositions and interrogatories come as part of the litigation process. Depositions are especially common as the parties prepare for trial. You will likely already be represented by a lawyer before the claim gets that far.
Your attorney may be able to negotiate an effective settlement for your claim before you reach the point of giving depositions under oath.
When insurance companies determine fault, they will consider everything that is “on record,” including recorded statements, interrogatories, depositions, recorded telephone calls, and interviews.
Any Other Available Evidence
Some types of accidents involve special types of evidence. For example, large commercial trucks sometimes have built-in black boxes that record operational data in real time. Likewise, the insurance company will need to consider any evidence that you and your personal injury lawyer might furnish (for example, if you hire an expert accident reconstruction specialist to prepare a report).
The Insurance Companies Don’t Have the Final Say
How do insurance companies determine fault? Well, they don’t really make that determination at all — at least not on their own.
Insurance companies are not above the law, and the law is what ultimately matters. So when they reach a decision about who is at fault in an accident, you should understand that their decision is really just an opinion, and you have the right to challenge it.
At the end of the day, the insurance company isn’t working as an independent investigator. Rather, they’re looking out for themselves. They have a strong financial incentive to “clear” themselves (and their policyholder) of wrongdoing.
Unfortunately, many of today’s biggest insurance companies operate on a “deny first, investigate later” basis, meaning they may deny your claim without doing the hard work of properly determining fault in the first place.
The experienced Bakersfield personal injury lawyers at The Law Offices of Mickey Fine can help you challenge the insurance company’s determination of fault (as well as any unfair apportionment of fault, in the event that multiple drivers were negligent). You are not at the insurance company’s mercy. You have rights, and we are here to fight for them.
The Law Offices of Mickey Fine Will Fight to Protect Your Best Interests
Please don’t make the mistake of facing a powerful insurance corporation on your own. We invite you to contact our office and talk about your legal options.
The Law Offices of Mickey Fine will fight for a full and fair settlement of your claim. To learn more about your rights and options, contact our office and schedule a free, no-obligation consultation. Our experienced Bakersfield personal injury lawyers are standing by.
Time limits do apply to most accident claims in California, so please don’t delay. Call 661-333-3333 in Bakersfield to speak with one of our Bakersfield car accident lawyers today, or contact us online as soon as possible.
We will never charge a fee for our services unless we get you money first. The initial consultation is absolutely free.