California is an at-fault car insurance state. This is important to know if a negligent driver hits you causing a car crash. In at-fault states, the liability insurance of at-fault drivers is what pays for damages to others. What’s more, a claimant’s damages in California will be reduced in proportion to their degree of fault. As such, insurance companies try to determine whether a driver failed to use reasonable care to prevent harm to oneself or to others – if so, their settlement amount will be significantly affected.
Pre-Litigation (before filing a lawsuit)
In order to determine fault in an accident, an insurance company will open an investigation. It is essential that you report your accident to your insurance company immediately. You need to give them enough time to analyze evidence.
First, the other driver’s insurance company will talk to their driver and get their perspective as to how the accident took place.
Next, the insurance company will request the police report and see what the police officer stated based on information drivers gave. They will review who the officer assigned fault to and review any citations police issued.
Frequently, insurance companies will request a recorded statement from the injured driver. The best policy is to avoid giving these statements without first checking with your attorney. You should also never sign anything without an attorney’s review.
Insurance companies also will look at property damage photos to see if the impact occurred as the drivers stated. Additionally, if there are independent witnesses, their statements will be relevant.
These are the most typical steps an insurance adjuster takes to determine fault in an accident.
Litigation (after filing a lawsuit)
When parties cannot settle out of court, the claimant may file a lawsuit against the at-fault party in civil court. If a lawsuit is filed, the insurance companies will look even more closely at the details and facts surrounding the accident.
For example, they will take a close look at:
- Interrogatory responses
- Both sides are able to ask questions on how the collision took place and the other side has to response.
- Depositions of Drivers
- Unlike in pre-litigation where a driver may deny a request for a recorded statement, in litigation a driver must appear and response to oral questions at a deposition. During litigation, both sides are entitled to deposition sessions with the opposing plaintiff or defendant.
- Depositions of Witness
- In addition, any witness will be asked question from both parties to determine fault.
- Statements/reports/deposition from expert witnesses
- Human factor experts
- What human error factors played into the accident? Did they check their mirrors and blind spots? Did the driver apply the brake at the proper time? Was the driver going to fast for the conditions? And so on and so forth.
- Accident Reconstruction experts
- They may ask experts to reconstruct the accident using 3D software technology.
- Human factor experts
After the plaintiff files a lawsuit and the case is progressing through litigation, proving fault will become a much more serious, and a much lengthier process.
It can be very difficult to stand up to an insurance adjuster, know how to prove fault, and acquire the resources necessary (like diagrams, experts’ testimonies, etc.) to win your case. To handle the process of proving fault and advocating for you, working with an experienced attorney is key.