Using Auto Accident Liability to Negotiate a Higher Insurance Settlement

Learn how insurance companies determine auto accident liability and what you can do to prove the other driver’s responsibility for your damages.

When you file a claim against another driver’s auto insurance, you must prove that their insured was to blame for the crash. Proving liability in auto accident claims is your first step towards negotiating a fair insurance settlement.

Even in no-fault insurance states, where you have to turn to your own insurance company for most injury claims, you still can file a claim against the other driver’s insurance for your vehicle damage.

Here’s what you need to know about how insurance companies determine auto accident liability, and how to use that information to build a strong claim for compensation.

Understanding Auto Accident Liability Rules

Insurance companies pay out millions of dollars in car accident settlements every year, but not until each claimant has met their burden of proof to show why their insured should pay.

If you’ve been injured in a car accident and decide to handle your own claim, you must establish liability before negotiating your settlement amount.

To establish liability, you must show:

  1. The other driver owed you a duty of care, in other words, they had an obligation to avoid car accidents.
  2. The other driver was negligent, meaning they did something wrong or failed to do what any reasonable driver would do under the circumstances.
  3. The other driver’s negligence was the proximate cause of your damages, meaning but for their negligence, you wouldn’t have bodily injuries and a dented vehicle.
  4. Your personal injury and property damages are verifiable.

Sometimes liability claims for bodily injuries are called “tort” claims.

The main types of liability in tort claims are:

  • Negligent torts, when the at-fault party commits a harmful act or omission
  • Intentional torts, when the other party intends to cause physical harm
  • Strict liability, when no proof of negligence is required
  • Vicarious liability, when another party is liable in addition to the person who directly caused your injuries

Most car accident liability claims involve negligence.

If the negligent driver was driving a commercial vehicle or was on-the-job at the time of the crash, you might also have a vicarious liability claim against the negligent driver’s employer.

Insurance Companies Rely on State Laws

Most big insurance companies use the state’s traffic laws to determine liability. If there is proof their insured broke a traffic law, like texting while driving or following too closely, they will accept your claim.

However, those traffic laws can work both ways. The insurance company will always look for reasons to blame you for the circumstances leading to the accident.

Did the texting driver hit you because you ignored a stop sign? Did you get rear-ended because your taillights weren’t working?

Find your location on this map of Car Accident and Personal injury Laws by State.

Insurance companies will deny or reduce your auto accident claim if you share a portion of the blame for the accident.

In Alabama, Maryland, North Carolina, Virginia, and the District of Columbia, the insurance adjuster will use the pure contributory fault rule to completely deny your claim if you share as little as one percent of the blame for the accident.

On the other hand, in states with pure comparative fault rules, you can seek compensation for your damages even when you are the driver most to blame for the car accident.

Most states use modified comparative fault rules, meaning the insurance company won’t be able to deny your claim unless you were equally to blame (50% rule) or more to blame (51% rule) than their insured. However, they can reduce your compensation in proportion to your share of liability.

Example: Reduced Motorcycle Accident Compensation

Martin was on his motorcycle, heading home from work on a hot summer afternoon. Since he was only traveling on back roads to get home, Martin decided to leave his helmet strapped to the back of his bike and enjoy the wind in his hair.

Martin was less than a mile from home when a pickup truck suddenly pulled out in front of him from a store parking lot. Martin couldn’t avoid the collision, and his motorcycle slammed into the side of the truck.

Martin suffered significant head and facial injuries from the crash, and his motorcycle was a total loss.

The at-fault driver’s insurance company paid Martin’s property damage claim but denied his injury claim, arguing that Martin was liable for his injuries because he wasn’t wearing a helmet as required by law.

Martin’s attorney filed a lawsuit of his behalf, seeking $100,000 for his injuries. His attorney showed the jury that but for the other driver pulling out into the roadway, Martin would not have been injured at all.

The jury agreed that the other driver was liable for Martin’s injuries. However, they also decided that Martin might not have been injured as severely if he’d worn his helmet, so he was 20 percent liable for his injuries.

Using modified comparative fault rules, the jury awarded $80,000 to Martin for his injuries, representing a 20 percent reduction to his $100,000 demand for his share of liability.

Evidence Can Prove Auto Accident Liability

Having the right evidence can be a big advantage when negotiating a car accident insurance settlement.

To prove liability, you need enough evidence showing that the at-fault driver’s negligence caused your injuries and property damage. Solid evidence can also prevent accusations of contributory fault that might be aimed at you.

Evidence to help establish liability includes:

  • Driver Information: Most states require drivers to share contact and insurance information. This is a fast way to find out if the other driver has a valid license, who owns the car (you may have claims against the driver and car owner) and other important information.
  • Witness Statements: Eyewitness testimony can be solid evidence of liability. When an independent witness describes seeing the at-fault driver violate traffic laws, that testimony is compelling. Witness accounts of comments blurted out by the other driver like, “I’m so sorry! I didn’t see you” can also be convincing evidence.
  • Photographs and Video: Photographs of the car accident scene, the position of the vehicles, and the damaged areas of the cars can be tangible proof of liability.
  • Police Reports: Always call 911 to report a motor vehicle accident. Police reports almost always include the officer’s opinion of negligence and fault, and details of traffic citations issued. Insurance adjusters put a lot of weight on the police report when it comes to determining liability.
  • Your Notes: Writing a detailed account of the accident immediately after it happened can help you remember the sequence of events leading to the accident, what the other driver or passengers said after the crash, how they behaved, the smell of alcohol, and other details that point to the other driver’s liability.
  • Medical Records and Bills: Request full copies of your medical records and bills after you have recovered from the accident. You’ll need to use the full amount of the bills to calculate your claim value, even if your health insurance carrier paid all or most of your medical bills.

Tips for Negotiating a Successful Settlement

Settling a car accident claim with an insurance company is a two-part process. Instead of having to deal with just one claims adjuster, you’ll likely deal with two. Most companies assign one adjuster to the property damage portion of a claim, and another to the personal injury portion.

Notify Both Insurance Companies

Be sure you notify your own insurance company of the accident as soon as possible. Even if you are convinced the other driver was 100 percent to blame for the crash, it’s in your best interest to notify your auto insurance company right away.

Your auto policy likely has a section called a “notice and cooperation clause.” When you signed your policy papers, you agreed to notify the company of an accident and to cooperate in their investigation. In turn, the insurance company will defend you against lawsuits filed against you by others involved in the accident.

After notifying your own insurance company, notify the at-fault driver’s insurance company.

Within minutes of reporting the accident, the insurance company will open a file, issue a claim number, and assign your claim to an adjuster. The adjuster’s job is to collect all evidence related to the accident, determine liability, and negotiate a settlement.

Settling Property Damage Claims Without Hassle

You’ll speak with a property damage adjuster about payments for vehicle repairs and any personal property that was damaged in the crash, like eyeglasses, your cell phone, laptop, clothes, and the like.

Property damage claims don’t require much negotiating. Estimates for car repairs are generally consistent among auto body shops. If your car must be in the shop for more than a day or so, the insurance company should approve a rental car.

If you have collision coverage on your auto policy, you may prefer to handle your property damage claim with your own insurance company. Many people like the convenience of filing a first-party claim on their own auto policy and leaving it to their insurance company to recover the funds from the at-fault person’s carrier.

Settling an Injury Claim Takes Time

The personal injury portion of your claim is not as simple as the property damage portion. If you decide to negotiate an injury settlement on your own, you have to prepare. You must be able to prove liability, the type and extent of injuries you suffered, and the amount of compensation that fairly represents all your damages.

The adjuster has been specially trained and has negotiated hundreds of claims. Don’t be intimidated. You can learn what you need to build a strong personal injury claim after a car accident.

You can successfully negotiate minor injury claims if you gather good evidence, organize your accident file, and watch what you say to the insurance adjuster.

The adjuster will be fully prepared and familiar with your liability and damage issues by the time settlement negotiations begin.

Prepare your case with the same diligence and commitment as the claims adjuster. Put time and effort into collecting the evidence you need to prove liability and damages. To succeed in a car accident insurance settlement, you must know your case backward and forward.

Have a Settlement Range in Mind

There should be a high and low limit to the amount of money you’re willing to accept from the claims adjuster. Before negotiations begin, you must have these numbers in mind.

The high end would be the ideal settlement – the highest amount you feel your claim is worth. If offered, you’d accept it in a heartbeat.

The low end would be the lowest amount you feel is justified by the facts and evidence. This lower amount is your drop-dead figure. If the claims adjuster doesn’t agree to pay at least that amount, you should be prepared to end negotiations, hire an attorney, and file a lawsuit.

When You Need an Attorney for a Fair Settlement

If you completely recovered from your car accident injuries and only missed a few weeks from work, you should be able to negotiate a fair settlement without an attorney.

Calculate how much your claim is worth by adding up your medical and therapy bills, your out-of-pocket expenses, and your lost wages. Then add one or two times that amount for your pain and suffering.

Make your settlement demand using our sample Car Accident Demand Letter.

If you were severely injured, or the adjuster is trying to pin some of the blame on you, you need an experienced personal injury attorney to get anywhere near a fair amount of compensation.

Don’t be fooled by a seemingly sympathetic adjuster. Insurance companies are notorious for offering lower settlements to claimants who aren’t represented by an attorney.

You don’t need any money upfront to hire a good attorney. Most attorneys don’t charge for their initial consultation. If the attorney takes your case, their fees will be paid out of your insurance settlement or court award.

Don’t settle for less. It costs nothing to find out what a skilled personal injury attorney can do for you.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>