Determining Who’s at Fault in a Car Accident: Whose Opinion Matters Most?

Insurance adjusters like to decide who’s at fault after a car accident. But the police report or a jury opinion may matter most in your claim.

Proving who’s at fault after a car accident can make or break your claim, especially when the adjuster is pointing the blame at you.

Without proof of the other driver’s fault, even if you’ve suffered life-changing injuries, you may not have a valid insurance claim. Whoever is at fault for an accident is liable for paying the other party’s damages.

Here we break down three “layers” of deciding fault and liability in a car accident claim: the insurance company, the investigating police officer, and a trial jury.

You need to know that the insurance adjuster doesn’t have the last word on how fault is determined. You have options to help ensure it’s resolved in your favor.

How Insurance Companies Determine Fault

After a motor vehicle accident, each driver should report the accident to their own auto insurance company. In a handful of states, you must first turn to the Personal Injury Protection (PIP) coverage on your own insurance policy. This is known as a no-fault car accident claim.

In most states, when another driver’s negligence causes an accident, you make your injury and property damage claims with the at-fault driver’s insurance company. A claims adjuster will be assigned, whose job it is to make their own determination of fault.

Separate adjusters are often assigned to handle the property damage and personal injury aspects of the claim.

The insurance adjuster determines fault by reviewing:

  1. The responding police officer’s accident report
  2. 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.

Insurance companies pay out millions of dollars in car accident settlements every year, but not a penny is paid out until each claimant proves why the insured is liable.

How to Establish Liability

If you’ve been injured in a car accident and decide to handle your own claim, you must establish liability before the other driver’s insurer will discuss settlement.

To establish liability in a car accident, you must show:

  1. The other driver owed you a duty of care, in other words, they had an obligation to avoid crashing into you.
  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 direct cause of your damages, meaning you wouldn’t have bodily injuries and vehicle damage if not for their actions.
  4. Your personal injury and property damages are real and verifiable.

Insurance Companies Rely on State Laws

Most big insurance companies use the state’s laws to determine accident 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.

For example, did the texting driver hit you because you ignored a stop sign? Were you rear-ended because your taillights weren’t working? Any traffic violation will work against your claim.

Fighting Back When They Blame You

Insurance companies will deny fault 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.

Most states use modified comparative fault rules, meaning the insurance company can’t 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.

The at-fault driver’s insurance company doesn’t get to have the last word about your share of the blame. You can challenge their version of how the crash happened, or their interpretation of state law.

Beware of Tricky Adjusters

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, often loaded questions, to try and lock you into statements that could hurt your claim down the line. These phone conversations are almost always recorded. Never let an adjuster bully you into agreeing to shared blame for your injuries.

The safest route for dealing with the other party’s insurance is to not talk to them at all. Contact an experienced car accident attorney to speak with the adjuster on your behalf. Most attorneys offer a free consultation. It pays to get good legal advice when the insurance company is trying to deny or minimize your claim.

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 personal injury lawyer filed a lawsuit on his behalf, seeking $100,000 for his injuries. His lawyer 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 initial $100,000 claim to account for his share of liability.

How the Police Determine Fault for Traffic Accidents

A critical 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 to report every accident.

When people don’t call law enforcement after an accident it often hurts their claim. The car accident police 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.

Law enforcement officers are credible and unbiased investigators, and they are trained specifically in car accident investigations. Insurance companies and juries 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. Oftentimes people who seem cooperative at the scene quickly change their minds once you’ve left.

Law Enforcement at the Accident Scene

Let’s say an accident just happened, 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.

The investigating officer will evaluate skid marks, vehicle damage, point of impact, and other evidence that clarifies how the collision occurred.

Accidents involving fatalities may be investigated by a team of specialized officers.

How does the responding officer affect liability for a claim?

  1. If either of the drivers violated any traffic laws, the officer will issue a ticket.
  2. If the facts allow, the officer will make their own determination of who was at fault for the crash.

The police crash report will usually be available within a week to ten days. Sometimes a preliminary report is amended to update a driver’s Blood Alcohol Levels (BAC) or drug testing results from samples taken at the hospital or from an autopsy.

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. If you are able, gather your own car accident evidence.

At the scene of the accident, you may be able to:

  • 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 meet 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.

For example, if both drivers say they had a green light, a witness can help you prove the other driver is lying.

Who Decides Fault After 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 the following:

  1. Who is liable for the collision
  2. 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 a personal injury lawsuit.

What Happens After Filing a Lawsuit

Car accident lawsuits must be filed against the at-fault driver, not their insurance company.

If you file suit, the other driver’s insurance company will hire an attorney to defend their insured. Their attorney will start 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 adjuster. After all, they’re 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. The defense lawyer will advise the adjuster on the strength of your case, and if they are better off settling your claim.

Lawsuits Can Help “Discover” More Evidence

In a lawsuit, the existing determinations of fault (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.


“Discovery” 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, such as the other driver’s history of traffic tickets or other violations.


Next, both the plaintiff and defendant will be “deposed” by the attorney for the opposing side.

A deposition involves the attorney asking a series of questions that are answered 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 agree on 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

More than nine out of ten personal injury cases settle out of court before the trial starts. 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.

Visitor Questions on Determining Who's At Fault

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 >>