The individual who is found to be at fault for the car accident is the party who is ultimately responsible for paying for the damage that was caused by this individual’s negligence. However, when fault is not clear or two or more parties were at fault, fault may be apportioned between the negligent parties. A further analysis under the comparative or contributory negligence laws under the state is also necessary.
Who Determines Fault
The insurance companies that insured the drivers who were involved in the accidents determine fault. They assign each party a relative percentage of fault, based on the drivers’ conduct. The claims adjuster handling the case bases the degree of fault on the circumstances surrounding the accident. Ultimately, insurance adjusters look to state laws to determine which driver acted negligently.
In some instances, the insurance company pays the respective portion of the insured driver’s share. For example, if Insurance Company A’s driver was 60 percent at fault and Insurance Company B’s driver was 40 percent at fault, Insurance Company A may pay 60 percent of the settlement, and Insurance Company B may pay the remaining 40 percent. In other cases, the insurance company that insured the driver who was most at fault pays the entire claim. Individual policy differences apply.
Insurance adjusters may have to work together and with their respective clients to determine each party’s percentage of fault. Each driver may advocate for the lowest percentage of fault with the assistance of his or her legal counsel. If the insurance adjuster and the driver cannot reach an agreement on the matter, a court may decide who is at fault and to what degree.
Factors that Affect Fault
Insurance adjusters may analyze a variety of information in determining fault. For example, they may review a police report to get an objective impression about the accident. This piece of information is critical because it is presumed to be devoid of personal bias or self-interest.
If other evidence is available, an insurance adjuster may also review this information. For example, the driver may have taken photos of the accident scene and property damage. Witnesses may be able to provide a statement regarding their perspective of the accident.
If one of the parties admitted fault after the accident, the insurance adjuster can also consider this information.
Negligence Laws
Insurance adjusters must also apply the state’s measure of damages based on how it views negligence. The state may use contributory negligence, comparative negligence or a modified approach in determining to what degree each party was responsible for the accident.
Contributory Negligence
Historically, if two people were involved in an accident and the victim was even partially at fault, he or she was barred from recovery. This legal concept is referred to as “pure contributory negligence.” A few states use this legal theory. However, most states have adopted a proportional form of establishing fault.
Comparative Negligence
This legal theory allows an injured party to recover the portion of damages he or she sustained that cannot be attributed to him or her. In states that adopted pure comparative fault, a victim can recover for his or her damages, but they are reduced by the percentage that represents his or her own fault.
However, most states require the other person to be at least 51 percent at fault or more before the victim can recover. This measure of damages is called “proportional comparative fault.”
Personal Injury Protection
Some insurance policies offer personal injury protection that helps pay for a driver’s property damage, personal injury and medical expenses without regard to fault. If a person has this type of coverage and is not entitled to compensation from the other party because of the state laws regarding negligence and the measure of damages, the driver’s insurance policy pays for these injuries.
Under this type of coverage, the insured individual files a claim with his or her own insurance company, up to a pre-determined maximum amount of coverage.
No-Fault States
Some states have no-fault laws, which require drivers to carry personal injury protection coverage. After an accident occurs in one of these states, each driver’s insurance company pays medical expenses for its respective driver, up to a certain policy limit. However, property damage recovery remains fault-based, which means that the at-fault driver is still responsible for paying these damages.
