If the police department does not determine fault, then who and how is this determined? Usually there are at least two parties or drivers involved in a car accident, and usually they have insurance. In this case, both insurance companies will handle the claim for their insureds. They would negotiation between each other and will settle for what they believe is it is fair.
Insurance companies must follow certain format to determine fault. They must look at the negligence of each driver and then attribute percentages of fault. The first step is a negligence analysis. Insurance adjusters must look at every driver’s duties, breaches, causation, and damages. All four elements must be met, and if one of them is missing, then that driver was not at fault. If all four exist, then the driver was at fault, but how much still needs to be decided.
To determine accident fault, insurance companies will look at the “driver duty”. Every person behind the wheel of a car assumes driver duties. It does not matter if you have a license or no, it does not matter if you are an adult or a toddler. The law will place affirmative duties in every driver for purposes of accident fault. But exactly what duties are attributed to every driver? Usually they are “lookout, avoidance, and following the rules of the road”.
Look out is simply paying attention. Every driver must be attentive to what is going around him/her. So when the adjuster asks you “did you see them coming” your answer better be “yes”. If you do not see another vehicle and you had the visibility to do see them, then you will have probably breach this duty.
Avoidance is exactly that. You must attempt to avoid the accident. The fact that another car is at fault, or has done something illegal does not give the driver license to hit them. For example, if a vehicle pulls out of a stop sign, the driver approaching must try to avoid the accident. No evasive accident could be strong evidence of negligence against the vehicle that had the right of way.
Following the rules of the road is the obvious one for accident fault. You must be in full compliance with all the traffic laws that apply to the accident. The traffic laws are codified in all states in the state annotated code or the administrative code (the name changes per state). If you are speeding, you can be found some percentage at fault for the damages.
The next step in determining accident fault is breach. This means that the duties outlined about must have been “broken”. If you did not breach any duty, you cannot possibly be found at fault.
But the accident fault analysis does not stop there. The insurance adjuster must then show causation. Most insurance companies go over this step very fast. It is a very important element because it could causation will amount as a defense to negligence. Causation is the relationship between the duty breached and the ultimate damages.
For example, let us assume that Driver is legally parked in a parking lot. Let us further assume that Driver is legally drunk in the driver’s seat and that the engine is running while someone pulls out of a parking stall and hits Driver’s car. Is Driver negligent? The answer for purposes accident fault is NO. The fact that Driver was drunk did not cause the accident. There was not casual connection between the fact that Driver was dunk and that a vehicle came and hit his/her car while waiting. For more information about causation visit http://www.auto-insurance-claim-advice.com/Causation.html
The last step is damages. Damages must exist either as property damage or as a bodily injury. The important thing to remember is that all damages must be related to the duty breach. In other words, if you have back pain and a headache, the analysis explained above will be applied twice (one time for the back pain and one time for the headache).
To learn more about accident fault in detail click here.