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Accident Fault | What adjusters will look for

Updated on November 19, 2008

A overview of how adjusters determine fault for any car accident

An in depth explanation of how adjusters determine fault for any car accident. The fault process is based on the legal theory of negligence. Negligence is the tort that puts you or any driver at fault. Adjusters follow this analysis to determine who is at fault and who should pay what.

Fault and Negligence

A quick overview of the basic elements

The accident fault analysis is based on many different things; they are all (or should) be directly related to the actual accident.

Many people will argue that because they file the claim first, or because they gave a recorded statement first, then they have no liability in the accident. Believe or not, people call the insurance company and argue the following:

“He came and hit me, I called you and he has not. This means that he wants to avoid fault because he is guilty.”

The fact that someone made a telephone call after the accident does not make them automatically at fault.

They argue that if a party does not file a claim, then that shows that they are at fault because they do not want to take responsibility for the accident. Others will claim that because you file a claim with your own insurance carrier, then you must be accepting fault. The fault analysis does not depend or is not really influenced by these types of arguments.

The parties' behavior may lead to the determination that someone was more responsible for the car accident. For example, if I was trying to light up a cigarette before we hit, this will probably show that I was not paying attention.

However, someone other circumstances have no bearing on the fault decision. For example, if someone is grumpy or in a bad mood after an accident, it does not change a fault determination.  An impolite and rude attitude might not have anything to do with the fault of the accident. Just because someone cussed you out, it does not mean that they are at fault.

There are different steps that an adjuster must follow to determine who is responsible. A car accident fault analysis is really a legal negligence analysis.

Negligence is composed of four elements: Duty, Breach, Causation, and Damages.

Perhaps the most important element is Causation. All elements must be present for you to be negligent or at fault for the accident. However, Causation can really determine whether or not you have to pay for damages.

Duty simply means that you have certain responsibilities when you drive (i.e. conserve your speed, look out, avoid an accident, and follow the rules of the road). A breach means that a driver breached one of the duties. Damages are the damages to your car and/or injuries to you (note: there must be damages, if there is no damage to your car or any injury, negligence or fault could not possibly exist).

The element of Causation requires that your breached duty (i.e. respect the traffic laws, lookout, avoid an accident) must be factually and legally related to the ultimate damage (the damages to your car and your injuries).

Note, adjusters (and the law) require you to separate damages apart (i.e. the damage to your back is different from the damage to your headlight). In other words, you must show that the breached duty caused the vehicle damage and it caused the ultimate injury. In other words, did the fact that I rear end you caused you damages to your vehicle trunk? Probably yes. Did the same fact cause you a brain injury? It depends on the type of accident, but most likely not.

To show a good example of Causation in car accident fault analysis, it is perhaps better to show when Causation is not present, and therefore a valid defense to fault.

Let's assume that party A is completely drunk and sitting in a parking lot (legally parked). The engine is running and Drunk A is sitting on the vehicle waiting for his friend to bring more beer. While Drunken A is on the parking lot, Cautious B shows up, loses control and hits Drunken A's vehicle. Is Drunken A responsible or the accident?

It is common knowledge that you cannot be driving a vehicle while intoxicated (it is also the law in all 50 states), so A has breached this duty (the duty of not being sober while sitting on the driver seat while the vehicle is running).

However, there is no legal or factual relationship between the fact that A was drunk and B came and hit A. Adjusters use a "but/for" test to come to a conclusion. But for A being drunk, would this accident happened? It probably would, it was B who lost control of the car. A's intoxication did not cause the accident. A's duty breached is not casually related to the damages. A would have an effective defense to fault.

Just because you do something wrong while driving, it does not mean that you are at fault for an accident because your breach might not be casually related to the accident.

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      6 years ago

      If ever you are involved in an accident you should have one of these onboard.


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