Assignment of Fault by Auto Insurance

[hereiznoy]

TEXAS.

My wife was recently involved in a situation where she changed lanes in order to avoid reaer-ending someone ahead of her who braked suddenly. As she was changing lanes, she realized there was someone in the other lane next to her, so she swerved back into her original lane, as the individual ahead of her had now turned. As it turns out though, the driver in the second lane swerved to avoid a collision with my wife, and hit the curb, damaging his wheel and tire, etc. No injuries. My wife stopped to see if the guy was alright, and shortly thereafter a cop arrived and stated he could not assign fault, and that technically this was not an accident for which he could write a report, so none was made.

Later, the driver of the damaged vehicle filed with his insurance company (who happens to be our insurance co. as well), who then questioned my wife and subsequently determined she was 100% responsible for the incident , despite the fact that there was no police report, and no confession of fault on her part. Personal judgements aside, my question is can the insurance company actually make a determination like this (placing 100% of the fault) when there was no police report, etc.? Why wouldn't the driver of the damaged vehicle be partially at fault (i.e., could he not have braked instead of swerving up onto the curb)?

Thanks!

 

[racer72]

Unless it was a situation where the officer witnessed the accident, insurance companies rarely use the police report in making a determination of fault. Fault is placed by the statements given by the involved parties. If you don't like the decision, you can challenge it, either through the courts or through mediation. Read your policy, it will explain how to challenge a determination of fault.

 

[Zigner]

But, why challenge it. According to your post, your wife WAS 100% at fault (if your wife gave the insurance company substantially the same story as you have given us.)
Or is this more of a "curiosity" question?

 

[ecmst12]

It is the insurance company's JOB to make a determination of fault, using all available evidence. In many places, the police won't even MAKE a report if there were no injuries. But yes, your wife was 100% at fault. If she hadn't been following too closely in the first place, she wouldn't have had to swerve.

 

[justalayman]

It is the insurance company's JOB to make a determination of fault, using all available evidence.

sorry guy. the only person that gets to make an actual determination that means anything is the judge.

an insurance company is biased and is attempting to minimize their costs.

the insurance companies may make a determination but their determination is not binding on anybody except their client and only then because of the contractual relationship.

 

[ecmst12]

If the case ends in a suit, then it falls to the judge. But short of that, the insurance company (or companies) determine fault based on the evidence and the laws. If someone doesn't like the decision and sues, then the insurance company gets to try to prove their case to a judge.

And I'm STILL not a guy!

 

[justalayman]

If the case ends in a suit, then it falls to the judge. But short of that, the insurance company (or companies) determine fault based on the evidence and the laws. If someone doesn't like the decision and sues, then the insurance company gets to try to prove their case to a judge.

And I'm STILL not a guy!

sorry about the "guy" comment. I didn;t know and was meant as a generic address. but in my defense, the moniker is lacking in clues to infer gender.

the findings of the insurance company have no legal weight since the insurance companies have no legal force.

They simply make a determination based upon what they believe to be the situation. I have also seen a negotiated settlement that neither party was named as responsible party yet there was definately a party at fault in that situation. It was simply a determination meant to prevent a court action because that was the most cost effective solution.

 

[moburkes]

But, in any case, the same insurance company represented both parties, so their decision is binding upon both parties. And, by assigning negligence to OP's wife instead of the other driver, they aren't minimizing anything, unless the deductibles are so different. Probably, though, IF is is the case, the insurance company is only saving a few hundred. A reputable company won't argue over that.

And, in most states, 50% is all that you need, in order to be surcharged. If either insurance company refuses to assign 51%, both parties can still be surcharged for an at fault accident.

 

[justalayman]

to be honest with you Mo, I never even read the entire original post. As I was perusing the thread, i caught emcst12's post and felt a need to address that issue.

It strikes me the same as when folks are told by the police that so and so is at fault. All I was saying is as far as determining fault, the only entity that can place blame and have it worth anything truly is the courts.

 

[ecmst12]

The insurance company's determination will often be the same one that a judge WOULD make, since that is their goal (an insurance company that spends lots of money defending themselves in court only to have their decisions overturned most of the time won't be in business very long). And unless the claimant is willing to go to court, it's the only decision that matters to him/her!

 

[moburkes]

I agree with both of you. It hardly ever gets to court, but, if it does, the outcome will probably be the same, since the adjuster is trained to investigate and determine fault.

 

[justalayman]

The insurance company's determination will often be the same one that a judge WOULD make, since that is their goal!

often is not the same as

the insurance company (or companies) determine fault based on the evidence and the laws.

I have experienced personally and known folks that have experienced an insurance company paying out when they shouldn;t and fighting a claim when it is legit.

The bottom line is the insurance company is going to see things in the light that shines best for them and they are going to do whatever is best for their bottom line. The truth often has little to do with their decision.

My wife was involved in an accident where the other party intentionally hit her and they were trying to deny the claim (at least until their client got on the stand and actually said he did it on purpose). There was never any doubt who was to blame but they tried to fight it simply to save them money.

so, they determine fault justly? I don;t think so.

 

[ecmst12]

Most insurance companies ATTEMPT to determine fault justly. To do otherwise leaves the company open to bad faith complaints, which are costly both in money and reputation. If there is no evidence either way, of course they are going to err in favor of their insured not being at fault, because the other party can't prove otherwise. I'm not saying there aren't sleazy insurance companies or sleazy adjusters out there, but it's not in the company's best interest to be that way.

 

[moburkes]

Justa-she's lucky they paid. Read your insurance policy. Most, if not all, exclude coverage specifically for purposeful acts.

 

[justalayman]

Justa-she's lucky they paid. Read your insurance policy. Most, if not all, exclude coverage specifically for purposeful acts.

the guy is a millionaire anyway (as well as a total idiot). she was getting what she deserved one way or another.

not that the money really took care of the 8 to 10 surgeries and the artificial shoulder she now possesses but it helped.

I'm not arguing the point any more. Insurance companies make money by having people pay in more than they pay out and one way they do that is minimize their pay outs whenever they can.

They are businesses in business to make money and they do a pretty good job.