Auto Insurance Claims: whos at fault? DAMAGES allocated, state insurance commissioner, mike kreidler

Question
Car came from side street into main road in front of my son causing him to lightly bump car's rear fender.  2-3 sec. later car behind him hit his rear end pushing him forcefully into first car again with much bigger impact (per witnesses) resulting in my son's front damage and first car rear damage.  SUV that hit them both sustained no damage to his front end...my insurance is saying my son is >50% at fault resulting in surcharge. I'm fighting this as witness and 1st driver both say it was 2nd impact which was the accident that caused all  damage.  Even the 1st driver says she barely felt 1st impact...is this his fault??

Answer
Dear Marilyn,

Since you mention surcharge by your own company, I will aim this response at defending against a rate increase for what we call an "at-fault" accident.

Your state insurance commissioner http://www.settlementcentral.com/links.php
should have made a definition as to what kind of damages will qualify for an insurance company to designate an accident as "at-fault", and thereby allow them to raise the rates.  In my state, for example, the nation's best insurance commissioner, Washington's Mike Kreidler, has defined by rule the threshold amount for an "at-fault" designation.  No matter how obvious the negligence of an insured, it CANNOT BE CALLED AN "AT-FAULT" ACCIDENT FOR PURPOSES OF RAISING RATES UNLESS THE DAMAGES EXCEED $750.  Hopefully, you live in a state with an enlightened insurance commissioner, and thus you may be able to fight a rate increase if the damages are minimal.

I will discuss two lines of defense to a possible rate increase by your own company.

In this case, your son appears to have been at fault for the first accident, UNLESS THE FIRST CAR FAILED TO YIELD THE RIGHT OF WAY.  Hence, the first line of defense is to assert that the first car did in fact cause the accident with its failure to yield to your son, who was already in the line of  defense.

Assuming you cannot win on that first line of defense, then go to the one of apportioning fault, with the hope that you can keep the damages beneath the threshold for an "at-fault" accident (which is usually around $750).

In most all states, we recognize the legal theory of comparative fault.  One of the tenants of that theory is also that damages must be allocated among the tortfeasors who caused the damages.

In this case, you will use the witnesses and a one paragraph letter from the auto body owner regarding the low cost of repair from your son's "light bump".

Get the owner and auto body shop guy who repaired the victim's car to state that the light bump would have caused less than the threshold of damages for it to qualify as an "at-fault" accident in your state.

That will give you the evidence to fight your company.  

Best wishes,

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