Get the ins and outs of how liability is determined after a car accident, and how it affects your personal injury claim and settlement.
Liability is the legal term for responsibility. To have a successful personal injury claim you need three things:
- Liability (someone else at fault)
- Damages (injuries)
- Someone to pay your damages
Without liability, even if you’ve suffered life-changing injuries, you may not have a valid claim.
Determining fault in a car accident is often simpler than other claims, such as slip and falls or medical malpractice. But that doesn’t mean it’s not important. Proving who is at fault after a car accident can make or break your claim.
Here we breakdown three “layers” of deciding who’s liable in a car accident claim, who is making those decisions, and how it can affect your case. We also provide some tips for helping ensure the issue of liability is resolved in your favor.
How Law Enforcement Determines Liability
The first determination of car accident fault comes from the law enforcement officer who responds to the scene. This can be city police, sheriff’s deputy, or state highway patrol.
Law enforcement won’t respond to every accident, particularly if there are no injuries and the scene is not dangerous or impeding traffic. Regardless, it’s in your best interest to call 911 if there’s any possibility you will file a personal injury claim due to the accident.
If there’s a chance you will file a claim, call the police.
When people don’t call law enforcement after an accident it often hurts their claim. The police accident report is an important piece of evidence. The report summarizes all the relevant information and gives the officer’s determination of who caused the accident. Insurance companies put a lot of weight on the officer’s opinion of fault.
Don’t fall for the other driver’s suggestion to “handle it without police or insurance.” Often times people who seem cooperative at the scene quickly change their mind once you’ve left.
Document, document, document. This starts with calling law enforcement and getting an official crash report.
Law Enforcement at the Accident Scene
Let’s say an accident just occurred, someone calls 911, and an officer shows up. After assessing the scene and checking for injuries, the officer usually interviews the drivers involved, followed by passengers and any remaining witnesses.
With few exceptions, an officer never actually witnesses the accident nor has first-hand knowledge of exactly what happened. This is a key point, discussed further below, to how an officer’s report or testimony may be used to determine liability at a later stage of the claim.
After the officer reviews the scene and talks to drivers and witnesses, he or she will return to their vehicle to write the report.
How does the responding officer affect liability for a claim?
- If either of the drivers violated any traffic laws, the officer will issue a ticket.
- If the facts allow, the officer will make their own determination of who was at fault for the crash.
If an officer is faced with two conflicting versions of how the accident happened, and no independent witness or evidence (tire marks, traffic or surveillance cameras, etc.), they will not try to determine who was at fault.
If an officer believes they have enough evidence to determine fault, it will be written on the last line in their report. This is often the first thing insurance adjusters look at when evaluating a new auto accident claim.
How Insurance Companies Determine Liability
After the scene is cleared and the officer writes their initial report, what happens next?
Each party involved will then report the accident to their insurance company. A claims adjuster will be assigned, whose job it is to make their own determination of fault, or more importantly, which insurance company is going to pay for the damages.
Separate adjusters are often assigned to handle the property damage and personal injury aspects of the claim.
The insurance adjuster determines liability by reviewing:
- The responding officer’s accident report
- Witness statements, pictures, and other available evidence
Often a single person decides whether or not the insurance company will pay your claim, and the amount. This is true for first-party claims with your own insurance company, and third-party claims against the at-fault driver’s insurance company.
When speaking with the adjuster, your statements are almost always being recorded. The adjuster can use anything you say against you, and often base their decision on a quick conversation you didn’t plan for. Remember this, and be careful what you say to anyone who calls you after an accident.
This is why it’s so important to have a knowledgeable personal injury attorney on your side before you talk to an adjuster. If not, you risk losing your case before it even starts.
Liability Once a Lawsuit is Filed
If you’ve gotten to the point of filing a lawsuit, it means you disagree with the insurance adjuster on one of two things (or often, both):
- Who is liable for the collision
- How much your claim is worth
If you and the adjuster are simply too far apart on the settlement amount, or fundamentally disagree on who’s at fault in the accident, your only choice may be to file suit.
What Happens After Filing a Lawsuit
A personal injury lawsuit can be a long, drawn-out process.
If you file suit, the other driver’s insurance company will hire an attorney. Their attorney will be starting with the same evidence gathered by the adjuster (the accident report, pictures, recorded statements, etc.).
The attorney won’t want to come in and contradict the liability decision already made by the insurance company’s adjuster. After all, they are on the same team.
But sometimes the insurance company bringing in an attorney can benefit you as a claimant. A fresh set of eyes can add a new perspective to their decision-making process.
So how does this issue of liability get resolved once a lawsuit is filed if all of the same parties are seemingly still making the decisions?
Lawsuits Can Help “Discover” More Evidence
In a lawsuit, the existing determinations of liability (the police accident report and the adjuster’s pre-suit decision) carry a lot of weight, at least initially. But there are other mechanisms within the lawsuit process designed to provide more evidence, which may change the outcome.
First, the parties will engage in “discovery.” This generally begins with a series of written questions answered under oath by all parties involved in the lawsuit. It also involves official requests for documents and other evidence that may not have been accessible pre-suit.
Next, both Plaintiff and Defendant will be “deposed” by the attorney for the opposing side. A deposition involves the attorney asking a series of questions, often over several hours and again under oath. These questions can be about your background, hobbies, how the accident happened, your injuries, and everything in between.
At this point, everyone should know everything there is to know about the accident. They should be able to make a decision or come to an agreement about the case, especially regarding liability, right? Maybe. Sometimes disagreement remains, and the only option left is to go to trial.
The Gamble of a Jury Trial
A trial means that you take the decision out of your hands, out of the hands of law enforcement, the adjuster, the attorneys, and anyone else involved in the case up to this point, and put it in the hands of 6 to 12 strangers, known as a jury.
In addition to being complete strangers who come into the trial knowing nothing about your case, the law limits what can be presented to a jury during a trial. Believe it or not, almost none of the opinions of people involved in the case so far can be heard, much less considered by a jury.
In some states, neither the accident report itself nor any statements given to the officer as part of their investigation are admissible at a trial. That means a jury may not even hear or see anything involved in the officer’s process.
Instead, a jury is often limited to the in-court testimony of witnesses at trial, photographs, and records which can be “authenticated” and given to the jury as part of its decision.
For a claimant, this means taking a calculated risk. You’re leaving the decision of who was at fault for the accident in the hands of a jury, who might be extremely limited in what they can even consider in making this decision.
Every experienced trial attorney will agree on one thing: They have won trials they never thought they’d win, and lost trials they never thought they’d lose. It’s the reality of putting your case into a jury’s hands to decide.
Hints to Tip the Scales in Your Favor
Now that you have a better idea of how car accident liability is decided at different stages of a claim or lawsuit, let’s discuss what you can do to help determine liability in your favor…when appropriate, of course.
At the Accident Scene
Call Local Law Enforcement
It’s almost always in your best interest to call local law enforcement so they can make an official record of the accident. This ensures you will at least have all of the important accident-related information.
You’d be surprised how often “let’s not get police or insurance involved” turns into that person changing their story or never responding after leaving the scene. You’re better safe than sorry.
Once law enforcement arrives, do your best to calmly and respectfully give your full version of how the accident happened, and why you believe you’re not at fault. But don’t stop there.
Collect Your Own Evidence
As important as it is to get law enforcement involved and have them make a formal report, don’t just rely on them or the report. Gather your own evidence.
- Take pictures with your phone.
- Talk to witnesses and get their contact information.
- Write detailed notes about the accident.
- Get the other driver’s name and contact information for yourself.
Accident victims often think there were witnesses who will back up their version of events, but those witnesses are missing from the officer’s crash report. Unless witnesses are in the crash report or personally known to the accident victim, there’s no way to track them down after the accident.
Keep a copy of our Accident Report Form with a pen in your glove box.
During the Insurance Investigation
After the accident, it won’t take long before insurance adjusters for all parties are trying to get everyone’s statement. While they may sound concerned and helpful on the phone, the reality is that their only concern is the insurance company’s bottom line. They want to pay as little as possible to settle your claim.
Be Careful Who You Talk To
Adjusters will ask questions, oftentimes loaded questions, to try and lock you into statements that could hurt your claim down the line. These phone conversations are almost always recorded. The best advice for dealing with the other party’s insurance adjuster is to not speak to them at all.
Let Your Attorney Be Your Voice
Your best bet is to retain an experienced personal injury attorney, and let them do the talking for you. A naive claimant’s statements can severely damage their case before it even gets started.
After a Lawsuit is Filed
Finally, if you’ve done all of the above and the claim still can’t be resolved without filing suit, remember this:
There’s no such thing as being over-prepared.
Make sure your attorney has all your pictures, property damage estimates, witness statements, and anything else you think might affect the issue of liability for the accident – good or bad. If there are issues with the case, your attorney needs to know about them as soon as possible.
Meet and talk with your attorney before answering written discovery. The same goes for your deposition.
Never go into a deposition without preparing with your attorney beforehand. You should go over exactly how you’ll address the issue of liability to achieve the most favorable result. If your attorney doesn’t suggest this meeting, consider another attorney.
Although no one can guarantee a favorable outcome, if you follow these steps, you will put yourself in the best position to ensure liability for the accident comes out in your favor.
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