Determining fault in a car accident can be a complex process.
Car accidents are complex and involve a myriad of factors. It thus follows that proving liability (or who’s at fault) can be a complicated issue that needs careful investigation. Drunk driving, distracted driving, manufacturer defects, the condition of the road and driver fatigue can all play a part in determining who was responsible for the accident, as well as how much fault lies with each party.
Facts speak louder than words.
A very common complaint we hear from clients is that the other guy’s insurance company is denying a claim simply because their driver says that he or she was not at fault. This is sign #1 that you need an attorney. Liability is not determined via one person’s word against another’s; rather, it’s done by looking at and investigating the facts. Just because the insurance company is denying your injury claim, this doesn’t mean you’re out of luck. Your attorney can send a demand letter which clearly lays out the facts of the case, cites relevant case law, and can even include a draft lawsuit to let them know that you’re not playing around.
In order to build a strong case, you will need to provide definitive evidence that shows the other person was at fault. If you feel that the police report or ensuing investigation is incorrect, your attorney may need to hire accident reconstructionists to perform an independent investigation during the discovery phase of your case. Lawyers often carry out these independent investigations, which can can include:
- Surveying the accident site for things like skid marks in order to gauge speed, direction, reaction time, and more.
- Asking witnesses to provide statements.
- Calling in an accident reconstruction expert to determine what may have happened minutes before the accident.
- Checking each vehicle for defects, maintenance issues, recalls, etc.
- Examining police reports.
All these activities (and more) will help your attorney build a solid case in order to accurately determine liability.
Modified comparative fault.
Depending on the state in which you live, the amount of damages (money) you can recover can vary greatly. In Texas, we recognize “modified comparative fault,” and follow the 51% rule. Essentially, this means that if an individual is determined to be at least 51% responsible for the accident, they are not entitled to any compensation. The injured party may receive compensation based on their share of fault. Say you were determined to be 33% at fault for the accident and the judgment was for $1 million. You would then be able to recover 67% of the $1 million, or $670,000.
Some states (such as Maryland, Virginia, North Carolina, Alabama, and D.C.) follow what’s called “pure contributory negligence.” This means that if your actions on the road played a part in the injuries you sustained, you won’t be eligible to collect damages, even if the other party was 99 percent at fault! Alternatively, some states (California, Florida, Arizona, New Mexico, Washington, Mississippi, New York and others) follow “pure comparative fault.” This means that you may recover damages based on your percentage of fault, but there is no 51% rule. Essentially, you could be 99% at-fault and still be able to recover 1% of the total award.
Questions? Call us for free!
Determining fault involves many factors that you may not be aware of: police reports, insurance companies, 3rd-parties, and a myriad of other things all come into play. If the insurance company is playing hardball, call us. Our personal injury lawyers will aggressively fight for your rights, and we’ll do it at no cost to you – we only recover a percentage if we win your case. Send us an email or call 1-877-405-4313 today for your free consultation, and we can determine how best to help you.