Blog Topic

When Accidents Occur
Posted by: Tim Keck
November 20, 2009

Concept of Fault or Liability

The determination of fault in an automobile accident may or may not establish the person or party liable for payment of the damages or injuries. This fact is wholly the result of legislative lobbying over the years by automobile liability insurance carriers, who have devised and promoted various alternative strategies to the common law concept that persons at fault pay for the damages. Under such legislative schemes, common law recovery for damages has been totally or partially abolished. In its place is a statutory reapportionment of liability for payment of damages. This arrangement does not mean that there is a statutory re-defining of actual "fault" per se. It simply means that many states have reapportioned the liability for fault, at least for purposes of automobile accident liability insurance. In all states, persons who fail to maintain liability insurance and who cause accidents may be personally sued, and their assets seized to satisfy any judgment against them.

Common Law

In its purest form, "fault" for causing an accident is either created by statute or defined by common law. Common law recognizes four basic levels of fault: negligence, recklessness or wanton conduct, intentional misconduct, and strict liability (irrespective of fault).

Negligence generally means careless or inadvertent conduct that results in harm or damage. It is a recurring factor in an aggregate majority of automobile accidents. It encompasses both active and passive forms of fault. That is to say, failing or omitting to do something (e.g., yielding a right-of-way) may result in liability just as much as actively doing something wrong (e.g., running a red light). Reckless or wanton conduct generally refers to a willful disregard for whether harm may result and/or a disregard for the safety and welfare of others. Strict liability may be imposed, even in the absence of fault, for accidents involving certain defective products or extra hazardous activities (such as the transporting of explosive chemicals).

Under common law, individuals who have caused an automobile accident have committed a "tort," a private wrong against another, not founded in "contract," and generally not constituting a crime. Those who have committed torts are referred to as "tortfeasors" under the law. Many automobile insurance policies continue to use the word "tortfeasor" to refer to people who are at least partly "at fault" or responsible for an accident.

There is rarely a question of fault when the tortfeasor has engaged in intentional or reckless misconduct, such as drunk driving. But when it comes to something less than intentional misconduct, e.g., general negligence, establishing fault for an automobile accident becomes more complex. Moreover, it is often the case that more than one driver or person is negligent and/or has played a role (even inadvertently) in the resulting accident. When there are multiple tortfeasors involved in an accident, state law dictates who must pay for both damage to property and injuries to the occupants of vehicles.

Motor Vehicle Statutory Violations

Every state has passed multiple laws which dictate the manner in which drivers must operate their vehicles upon public roads. Many of these statutes are actually codified versions of the common law, while others are the result of legislative initiative.

The important point to remember is that a violation of any of these statutes generally creates a presumption of negligence as a matter of law. Thus, "fault" in an accident may be established merely by citing a statute that has been violated. A tortfeasor who is presumed to have caused an accident by virtue of a statutory violation must bear the burden, in any legal dispute, of proving that he or she was not negligent, or (in the alternative) that his or her negligence was not a proximate cause in the accident. The simplest way to apply the concept of proximate cause to an automobile accident is to ask whether it would be true that, "but for" the violation, the accident would not have occurred.

Automobile Accident Liability Insurance

The federal McCarran-Ferguson Act, 15 USC 1011, contains the basic provisions which give states the power to regulate the insurance industry. This power particularly applies to in the automobile insurance industry, where there is very little federal interest, excepting matters involving interstate commerce in general.

State law dictates not only what form of negligence law applies to automobile accidents but also what form of liability insurance individuals must maintain in order to lawfully operate a motor vehicle. The liability insurance that they purchase generally parallels the form of negligence law found in their particular state.

In general, liability for accidents can be affected by any of the following:

Contributory Negligence Standards

Contributory Negligence: A minority of states have maintained the common law defense of contributory negligence. Its significance to automobile accident liability is that individuals cannot sue another for injuries or damages if they also contributed to the accident by his or their own negligence. For example, if they are making a left-hand turn in their vehicle and are struck by an oncoming vehicle that is traveling 10 mph over the speed limit, they cannot sue the motorist for damages if they failed to have their turn signal on and the speeding motorist did not know that they were going to turn in front of them. Under such a theory, their own negligence contributed to the accident, and, therefore, bars their right to recover from the other motorist. This situation is referred to as "pure contributory negligence." Some states have maintained a version referred to as "modified contributory negligence" in which individuals may file suit against another tortfeasor only if their own negligence contributed to the accident by less than 50 percent.

Comparative Negligence Standards

Comparative Negligence: In states that utilize comparative negligence theories, individuals may sue another motorist whether or not their own negligence played any role in the accident. However, recovery for damages will be reduced by the percentage of fault attributable to them. This situation is often referred to as "apportionment of fault" or "allocation of fault." For example, in the above example, assume that the turning driver sues the speeding motorist for $100,000 in damages. At trial, a jury will be asked to determine what percentage of the accident was caused by the speeding and what percentage of the accident was caused by the turning driver's failure to operate the turn signal. Assume further that the jury finds that the turning driver's own negligence contributed to the accident by 30 percent and the negligence of the other motorist contributed to the accident by 70 percent. If the jury agrees that damages are worth $100,000 the turning driver would only be able to recover $70,000 in damages (or $100,000 reduced by 30 percent caused by that driver's own negligence). If, conversely, the negligence was found to have contributed 70 percent to the accident, the driver could only recover $30,000 for the 30 percent fault for which the other tortfeasor was responsible. Again,this is true in states that apply a "pure" theory of comparative negligence. Other states have modified comparative negligence principles to permit a lawsuit only if a person is were less than 50 percent negligent.

No-Fault Liability Systems

No-Fault Systems: In states that have statutorily established a "no-fault" system of liability for negligence, each person's own insurance company pays for his or her injury or damage, regardless of who is at fault. No-fault insurance liability coverage does not apportion damages or fault. However, it usually does not cover damage to the automobile, and separate collision coverage is needed. In states with no fault systems, individuals may file suit only if certain threshold injuries have occurred or damages exceed insurance coverages.

Components of an Automobile Insurance Policy

Depending on the state, automobile liability insurance policy may contain some or all of the following:

• Bodily Injury Liability: The insurer will pay damages when other persons are injured or killed in an accident for which the insured are at fault.
• Personal Injury Protection (PIP): The insurer will pay for the insured's injuries and other related damages to the insured and to passengers.
• Property Damage Liability: The insurer will pay damages when the property of other persons has been harmed or destroyed by the insured's vehicle and the insured is at fault.
• Collision Coverage: The insurer will pay for damages to the insured's own vehicle, when the insured is at fault. If the insured's vehicle is financed, the loaner may require the insured to maintain collision coverage on the vehicle.
• Comprehensive Coverage: The insurer will pay for damages to the insured's automobile caused by fire, theft, vandalism, acts of God, riots, and certain other perils. If the insured's vehicle is financed, the loaner may require the insured to maintain comprehensive coverage on the vehicle.
• Uninsured/Underinsured Motorist (UM/UIM) Coverage: The insurer will pay for injury or death to the insured and the insured's passengers if caused by an uninsured or underinsured tortfeasor or a hit-and-run motorist. In some states, the insurer will also pay for damage to the insured's vehicle. An uninsured at-fault tortfeasor may be sued and his or her personal assets attached to satisfy any judgment.

When Accidents Occur

The following points may assist individuals in the event that they are involved in a motor vehicle accident:

In a Rental or Leased Vehicle

In a Rental or Leased Vehicle: In most states, individuals' own insurance policy will protect them for any automobile that they are driving. There is no need to purchase additional insurance from the automobile rental or leasing company unless they wish to increase their coverage, e.g., add collision coverage.

When a Pedestrian or Bicyclist is Hit

When a Pedestrian or Bicyclist is Hit: In some states, there is a presumption of fault if drivers strike a pedestrian or bicyclist, for want of care and defen-sive driving on the driver's part. However, the presumption can be overturned by evidence of fault or statutory violation on the part of the bicyclist or pedestrian, e.g., bicycling at night without a headlight, jaywalking, etc. In no-fault states, injured pedestrians are often covered by their own automobile policies, even though they were pedestrians at the time, and even if the driver was were at fault.

When an Animal is Hit

When an Animal is Hit: When a domesticated animal is injured and/or damage occurs to the driver, there may be a presumption of fault on the part of the animal's owner for allowing the animal to run at large. If the accident was caused by driver negligence, the animal owner may file suit against the driver. Most states limit damages to the value of the animal or its medical care, and do not permit non-economic damages such as emotional damages associated with the loss of a pet. However, this is a rapidly developing area of law. Injury or damage to the driver's vehicle caused by collision with wild animals (e.g., deer) is generally covered without assignment of fault. The driver should render assistance to the animal only if the driver will not further endanger himself or other motorists.

In One Vehicle Accidents

In One Vehicle Accidents: The insurance policy will generally cover injuries and damages, but the driver may still be found "at fault," which could affect the driver's insurance premiums.

In Another State or Country

In Another State or Country: Generally, the laws of the state in which the accident occurs will govern the allocation of fault and liability.

When One Causes Accident

When One Causes an Accident: Individuals should never leave the scene of the accident. They should avoid statements of apology or admissions of fault: there may be other factors involved that they are not aware of. They need to render assistance to any injured persons, but not to attempt to move them. They should not move their vehicle unless the accident is minor. They should attempt to secure the names and telephone numbers of witnesses, even though they believe they are at fault. They must always be truthful to their insurance company. Misrepresentations may result in cancellation of a policy for insurance and expose them to even more liability. Some states require that a police officer always be called to the scene; other states require police involvement only in circumstances of declared injury. Generally, a police officer cannot issue a citation if he or she did not witness the accident, unless it is clear that the accident could only have been caused by one driver. Notwithstanding, others drivers may have contributed to the accident, even if they did not receive citations.

When One is Injured in an Accident

When One is Injured in an Accident: People should never assume that they are not injured. They should remain in the vehicle and take a few moments to assess their physical condition and the situation. Some injuries, such as spinal vertebral displacements (e.g., narrowing of intervertebral disc spaces) do not manifest immediately. If you they are physically able, they should attempt to secure contact information of witnesses. If they are taken to a medical facility, their personal health care insurance provider may originally be billed, or the medical facility may request contact information for their automobile insurance provider. (Each state has its own law regarding the "priority" of insurers responsible for payment.) Individuals should remember that if they do not have either healthcare or automobile insurance, they are still entitled to emergency medical treatment until their condition is stabilized. This entitlement stands is true regardless of their ability to pay, and regardless of who caused the accident.

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