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by Jeff Rasansky -
Jeff Rasansky
Jeff Rasansky, managing partner of Rasansky Law Firm, is an aggressive Dallas personal injury lawyer with more than 25 years of legal experience.

Most car accidents happen quickly while no one is paying attention.  It can be challenging to determine who is at fault, and if so, what percentage of the blame that person has.  You could have one opinion, the police officer on the scene could have another, the other driver could have a third, and witness accounts are notoriously inaccurate and suspect.  With that said, there are things you need to do following a car accident that was not your fault.  Below are some suggestions.

Get a Police Report

A police report must be made to the Texas Department of Transportation within 10 days of the accident if any party suffered bodily injury.  Texas law requires drivers to report a crash any time that a crash results in injury, death, or property damage of $1,000 or more.  Failure to report may induce a fine up to $5,000 and/or imprisonment.

Police officers are typically dispatched to accidents if there are reported injuries or fatalities, the accident is blocking traffic, at least one driver may be intoxicated, or if the drivers are fighting or otherwise being disruptive. If the police don’t arrive or are unable to meet you at the accident scene, you can submit a report at the nearest police station on your own or download a police report online and mail it in.

Contact Your Insurance Company

The driver who is at fault for the accident must report to his or her car insurance company. Keep in mind that you may want to contact their insurer as well because motorists who cause accidents often neglect to report them.

Whenever you speak to any type of insurance agency, always keep in mind that they are putting their best interests first, not yours. An insurance claim representative may record your statements. Ask them if they are recording you. Do not allow a recorded statement without talking to an experienced attorney. If you say anything that isn’t in your favor, they will use those statements against you in support of offering you little to no payment for your damages.  Don’t give the insurance company a reason to deny your claims.

Try not to discuss who is at fault in the accident with your insurance company or the other driver’s company.  You can only offer an opinion on that matter, not facts, because the fault is something that can only be determined after a professional investigation.

You May Be Contacted By The Other Insurance Company

It is likely that the other driver’s insurance company will reach out to you, too.  Be careful what you say.  In fact, it may be best to hire a personal injury attorney to assist with these types of communication.  Hiring a personal injury attorney will help protect you from having your claim denied or minimized.

Determining Who’s At Fault

Even if you know in your gut that you were not at fault for the accident, insurance companies and courts look to a number of pieces of evidence that come into play with an auto accident claim.  Here are a few common examples:

  • Take Pictures – Take pictures of everything at the accident, especially the vehicles, from many different viewpoints. Photograph any injuries and the roads where the collision occurred.  Often pictures that show how the cars are positioned with respect to traffic can give clues as to which driver made a wrong turn or ran a red light.
  • Collect Statements from Witnesses – Get the names and telephone numbers from all witnesses so that your attorney may speak with them at a later date. The police report may have this information, too, but it’s best to get it yourself.
  • Medical Records – If you’re hurt (and even you think you’re not) seek medical attention. Often the shock of a crash increases adrenaline and stress so that you don’t feel the extent on your injuries until a couple days later.
  • Accident Reconstruction – This will likely only be done in the most serious of car accidents. It’s one of the reasons it’s so important to photograph the entire area around a car accident so a reconstruction expert can determine to the best of his or her ability what happened.  Insurance companies and the court rely heavily on these reports.

Fault Determinations in Texas

The State of Texas has adopted the legal concept of “comparative negligence” in personal injury cases.  This is also known under Texas law as modified comparative fault or “proportionate responsibility.” The formula is not an exact science. Negligence is defined as: “the failure to act as a person of reasonable prudence would have acted under the same or similar circumstances. Since Texas is a state where partial responsibility can be assigned, you can be partially at fault even if you are the victim. But, on balance, the amount of recovery you can receive will be reduced by the percentage of your negligence (if any) contributing to the car accident.  But if one driver is more than 51% to blame for his injuries, then he will not be able to recover at all.

Rear-Ended Accidents.

Some of the most common accidents are when one driver rear-ends another.  It would seem simple that the driver of the first car (the car that was rear-ended) would not be liable under any circumstance, but that is not the case.  In fact, in a rear-end car accident in Texas, a jury can find either driver, both or neither at fault for the collision.

For example, you could feel you were driving responsibly and doing exactly what you were supposed to be doing because you got hit from behind, the accident should not be your fault. However, the other driver probably feels different. Common defenses may say that you stopped on a green light when it was unsafe or that you slammed on your brakes for no apparent reason. The defense could also claim that you were distracted by a cell phone or any number of other distractions.

Other Issues Related to Fault

Fault determinations are not easy, and there are many factors at play. Another issue could be the unavailable accident defense because it is not caused by the negligence of any party involved. A common example is a wild animal crossing the road and causing an accident. Passengers or other drivers somehow associated with the accident will likely not be able to recover against the primary driver who hit the animal.

Similar to the unavoidable accident defense, the sudden emergency defense provides for a finding of “no negligence” if (1) an emergency arose; (2) the emergency was sudden, unforeseeable, and was due to no fault by the defendant; and (3) the defendant reacted to the accident in the way a reasonably prudent person would have.

Settlement Demands After Initial Fault Determination

Once there is some reasonable determination that you were not at fault,  these are the next three most likely scenarios: (1) the other side admits fault and responds to your demand with a reasonable offer; (2) the other side admits fault but refuses to respond to your demand; or (3) the other side denies fault all together and, consequently, forces you to spend time and resources in another forum.

When you’re in an accident, and even when you’re convinced it’s not your fault, the best thing you can do to protect your rights is to collect as much information as possible and work with a personal injury attorney.  Your attorney will take on the responsibility of managing your relationship with the insurance company, the opposing party, and, if necessary, in court.

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