Auto Insurance Claims: Rear Ended by a Driver with Break Failure, law of torts, dear sally

Question
I was rear ended by another vehicle while I was stopped at a red light.  I called police and the report was completed with no citation because the at fault driver insisted that her brake failed.  We are both insured by the same company.  I was told by the adjuster that I can't file claim against her policy until the investigation for the brake failure completes and that may take a month.  I decided to use my policy to repair my vehicle for now and get a reimbursement later.  So far the investigation found that the at fault driver had her brake worked on the day before the accident.  The adjuster told me that if the investigation finds that the at fault driver really had a break failure, the insurance company would go after the auto repair shop that worked on her breaks to collect money.  If the shop doesn't admit fault and doesn't pay money, I won't be reimbursed.  If the investigation finds that there were no break failure, I will be reimbursed by the at fault driver’s policy.  My question is that since the other drive rear ended me, shouldn’t my claim be filed against her policy whether there was a break failure or not.  If her break really failed, she can get a reimbursement from the auto repair shop she’s accusing of.  It doesn’t seem right to me that I have to use my policy to repair my vehicle and may not be reimbursed.   Is my insurance company handling my claim correctly?  What is the common procedure in this case?

Answer
Dear Sally,

Notwithstanding what you hear about too many claims for compensation, the laws of tort are limited in application.  The fact that someone is injured by another does not automatically give rise to an action against the party who "caused" the harm.  It is the issue of causation that is in question: you only get a legal claim against another for a tort--either intentional or negligent.

An Overview Of The Law Of Torts and Insurance Negligence
http://www.settlementcentral.com/page3000.htm is an Excellent Tort Explanation.

Unforeseeable mechanical failure is not negligence.  If a person has taken good care of her vehicle, as this owner did, and something fails with no fault on her part, there is no negligence.

Now if the owner has not taken care of his vehicle and it fails, then one might have a claim against him.  

In this case, assuming that the brakes did in fact fail as a result of the mechanical work, then your claim would be against the auto repair shop.  They did not have a contract with you, per se.  But if they were negligent in sending her car out on the roadway in a condition wherein it would fail, then you will have an action versus them for your car repairs and your injuries.  They will have an insurance company and your claim will be processed for just the same amount of money as if you were claiming versus the driver.

The fallback position most people would think of is to claim on your Uninsured Motorist coverage (UIM) for both property and bodily injury damage.  There is a basic question of policy construction however, that may make such a claim difficult. In this respect, you should go to one of those "free initial consultation" injury attorneys and ask her how creative she can be to get coverage from your UIM.

Best wishes,

Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com