Who determines fault in states that do not use no-fault insurance?


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Question:

Who determines fault in states that do not use no-fault insurance?

Answer:

In states that do not use no-fault insurance, fault is initially determined by the insurance companies through negotiation but sometimes fault is not finally determined until the parties go to court. The accident report, written by a law enforcement officer at the scene of the accident may attribute fault, or greater fault to one driver but that is not considered a final fault determination. Instead, it is an important point of evidence.

Four Elements Examined

When attempting to determine which driver was at fault in a car accident, the insurance company will carefully examine four elements of the case or incident:

  • The duty of each driver
  • Breach of duty
  • Damages
  • Causation

The review of these four elements is called a negligence analysis, and each involved insurance company will do the analysis for each of the drivers involved in the accident.

The duty of each driver when they are behind the wheel is to pay attention, avoid other cars and obstacles and follow the rules of the road. For example, as a driver you have a responsibility to drive at or under the speed limit, on the right side of the road and to stop your car at a stop sign. You need to be aware of all other vehicles around you, and if one of them swerves into your lane or fails to stop at a stop sign you should take evasive action; failure to do so could cause you to be found partly at fault.

If you fail to perform your duty as a driver in any of these areas, you have breached your duty. If not, then you did not breach your duty as a driver and are not at fault.

Damages to the cars, other property or injury to people must have occurred in the accident. Causation is the specific relationship that draws a straight line from the driver's breach of duty as the cause of the damages. In other words, the actions or lack of actions on a driver's part in an accident has to be the direct cause of any damage.

A defense attorney, preferably one who specializes in personal injury and car accidents, should be consulted as soon as possible after an accident in order to best protect your rights.

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