Determining Fault After a Car Accident

Let’s start with a bang: One vehicle hits another. But who’s at fault? The result will be decided in different places. It could be decided on the road where it happened, in a police report, by the auto insurance companies, in arbitration or in court by a jury.
And could happen to you. The National Highway Traffic Safety Administration (NHTSA) says there were 6.7 million mishaps in 2018, the last year reported, with about 2.7 million people injured and over 36,000 deaths. About 4.8 million of the crashes had only property damage.
But it doesn’t mean that those 4.8 million accidents were painless. They likely kicked off a complicated and legalistic process involving feuding drivers, penny-pinching insurers, lots of lawyers and terms like “subrogation” and “pure contributory negligence.” What actually transpires, and how much money you receive, often depends on the state where it happened.
When it comes to deciding who’s to blame for a car accident, here are five methods and tips on how to navigate them:
Method No. 1: The Drivers Involved Decide
While still at the scene of the accident, the drivers involved could decide.
“There’s a natural instinct for drivers to ‘point fingers’ at each other as they exchange information,” says accident attorney Gary Wickert of Matthiesen, Wickert & Lehrer. This may be harmful. Sometimes drivers are so shaken up or intimidated that they point the finger at themselves. In the heat of the moment, either driver could admit to being at fault.
“They may make an admission such as, ‘I didn’t see the stop sign,’” says Wickert. But that’s not a good idea. It could come back to haunt you if you go to court. “There are consequences to being too forthcoming,” warns Wickert.
So what should you do? Take cell phone pictures before the crash vehicles are moved and note the names and phone numbers of those involved, including witnesses. Ask the other driver, or drivers, to show you their license and insurance ID card. Make sure to record the make and model of all the cars involved. Document the location of the accident, time of day and weather conditions. And, if necessary, wait for the police to arrive.
Method No. 2: The Police Report Decides
When the police arrive on the scene of an accident, an officer’s first job is to figure out if anyone is hurt and, if so, call for medical help. The second is to assess the scene—note the damage to all vehicles involved and, equally important, see where they are now situated. This often makes it clear as to who actually is at fault. For example, if one vehicle careened through a stop sign and “T-boned” the other, or if one was merely stopped at a red light and hit from behind, then the end result is pretty clear. The officer will usually make a diagram of the scene.
Special circumstances could have caused the accident, such as cell phone use, speeding or driving under the influence (DUI). And that’s why the officer should talk to any witnesses, including those who were in the vehicles involved in the accident. The officer will probably ask many of the same questions that would be asked in court. Have your story straight and don’t utter spontaneous admissions.
Bear in mind that a police report is not infallible. But it is a public document that auto insurance companies will undoubtedly read. And you should too—when it becomes available. If no police officer was at the scene, then go to the nearest police station to file an incident report in person, or file it later online.
“Filing an official police report can help, especially if the other driver involved decides to sue you for damages or medical injuries, or there is more damage done to your vehicle than originally thought,” says vice president Loretta Worters of the Insurance Information Institute, which represents many auto insurers. “If you do file an insurance claim, you’ll need to have that report.”
Method No. 3: The Insurance Companies Decide
Insurance claims are getting much easier to file. They can often be done virtually, accompanied by pictures of the accident. Algorithms will instantaneously evaluate the damage.
When all those involved in the accident have filed claims with their insurance companies, it’s up to the insurers to decide the outcome. If you carry collision coverage, you can file a claim for your car damage.
If the other driver is indeed at fault, then your insurer will seek restitution from the other driver’s insurer using a process known as “subrogation.” Simply put: Your insurer will ask the other driver’s insurer to reimburse it for the collision claim and you’ll get a refund of your deductible.
If it only involves monetary damages, “take it to small claims court,” suggests Robert Passmore, who oversees auto and claims policy for the American Property Casualty Insurance Association. The average property damage liability claim was $4,146 in 2016 (the most recent data available), according to the National Association of Insurance Commissioners.
In a few cases a jury decides but there aren’t any civil jury trials presently in Vermont because of the pandemic.
Small claims courts nationwide often permit lawsuits up to $10,000, although some are limited to much less, such as $2,500. In Vermont it’s $5,000.
But winning your case can be onerous and downright nasty. “Insurance companies have their own personalities, just like people,” says Wickert. “Some pay because they want it settled, while others have a scorched earth policy and fight for every dime.”