Firstly, no insurance company is your friend. Secondly, do not speak to an insurance company until you consult an attorney. Insurance companies need to determine who is at fault in the accident. This will affect who is awarded damages and how much payment each party receives. Under common law, there are different kinds of fault. The two most commonly applied to auto accidents are negligence, which is careless or inadvertently harmful behavior, and recklessness, which involves a deliberate disregard for the safety of other people. Failing to observe the proper procedure at a four-way stop would be a case of negligence, while drunk driving would constitute reckless behavior.
Before I move on, you need to understand an important legal term, and by the way, if you will checkout the Legal Information section of our website, you will find a glossary to help you with other legal terms that may be confusing. Now moving on to the legal term, Tort. If you cause an accident, you have committed a tort, which is a private wrong committed outside of a contract. Someone who commits a tort is called a tortfeasor. This term is commonly used in insurance policies.
Insurance claims adjusters look at four factors in order to determine fault: duty, breach, causation, and damages. All four of these elements need to be in place for the company to assert that a party is at fault.
First, every driver has certain duties while on the road. These duties are usually described as “look-out”, avoidance, and following the rules of the road. “Look-out “means you always need to be aware of your surroundings. It is your duty to see what is happening on the road and in your environment. For this reason, never tell an adjuster or police officer that you “didn’t see the other car” or “it came out of nowhere.” This is enough to establish that you are at least partially at fault, as you did not uphold your duty to be aware of your surroundings.
In order to determine fault, insurance companies must determine the defendant did follow at least one of these duties. This is known as a breach. They also need to show causation, i.e. that there is a connection between the duty breached and the damages caused. All damages, either property damages or injuries, must be related to the duty breach that you caused. For example, say your car is parked with the engine running, but you are not wearing your seatbelt; another car hits you, and you are injured in the collision. On the one hand, you were breaking the law by not wearing your seatbelt. However, this breach did not cause the accident, i.e. wearing your seatbelt would in no way have prevented this accident. Therefore, you are not liable for damages to either car. However, if failure to wear the seatbelt exacerbated your injuries, your claims for damages could be reduced.
There are two kinds of accidents where fault is straightforward. The first is a rear end accident. In this instance, the driver behind you is always at fault, as he or she has a clear duty to maintain a safe following distance. Even if you stop suddenly, the other driver should have enough space to stop safely. If that driver has been pushed into you by another car, he could claim damages from the car that hit him. However, he is still liable for the damages to your car. If you have done something wrong, such as driving without working brake lights, your damages award could be reduced.
The second type of fault that is straightforward is a left turn accident. In this scenario, the driver turning left is at fault, as the driver going straight has the right of way. There are a few exceptions, of course, such as if the other driver is speeding or runs a red light.
Finally, in most other types of accidents, there will most likely be some degree of fault on both sides.
