Who was at fault?

[MomIsWorried]

What is the name of your state? Ohio

This is one of those "too late to do anything about it now" questions, but it has bothered me for years.

In 1999, my husband, my daughter (age 10 at the time), and our son (age 4 at the time) were in an auto accident. I, obviously, was not in the vehicle, so the account of what happened comes from the memories of my daughter and my husband (son doesn't remember much at all about the accident).

It was November, it wasn't very cold that day, and there was no ice on the roads, although it had rained early that morning so the roads were wet. Several weeks before the accident, crews were out resurfacing the road on which the accident occured (we live on the road, the accident happened 6 miles from home). They had completed the resurfacing, but it was uneven along the center line which created a "ledge" or "lip", and if you weren't careful, it was easy to hit that "lip" and bounce off of it. (Dang, I hope that makes sense, I don't quite know how else to word it) The "lip" had been there for well over a week, but the road crews had disappeared and hadn't worked on the road for well over a week.

As hubby was driving along, a truck (small one, Ford Ranger size) came up behind them. Daughter remembers hubby making the comment "Watch out hon, this guy is awful close to me." Hubby was driving my Grand Caravan...daughter was sitting in the very back seat, son was in his booster seat in the passenger side. Daughter says the last thing she remembers was seeing the truck fly past them, then seeing its brake lights come on. Hubby takes over the story from there ... he hit his brakes to avoid hitting the truck. The truck passed illegally, it was right at the top of a hill, which was a no-passing zone (has always been a no passin zone, but was not marked at that time due to the road resurfacing project). The truck had passed my husband, slammed on his brakes, and made a right-hand turn into a driveway (we later found out this was the drivers home). When hubby hit his brakes, he somehow got too close to the "lip" and with the road being wet, he started to spin. Highway Patrol said the van spun "at least 3 times", went left of center in the process, and into a field on the opposite side of the road. The vehicle then slammed into a row of trees, on the drivers side. Hubby says the last thing he remembers is seeing the trees and knowing they were going to hit on the passenger side, so he whipped the wheel, hoping to spin the vehicle one last time so that the trees would hit on his side, as both children were on the passenger side. The van was smashed in half ... I can't even begin to describe to you the damage that was done to the van.

Thankfully, no one was seriously injured. Son had a small cut on his head from the flying glass, daughter had seatbelt burn on her neck (from the shoulder strap), a bruise on her stomach from the lap belt, and a whiplash injury. Hubby was hurt the worst, concussion, whiplash, multiple cuts that required stitches, and bruises...and he also lost a chunk from his left ear from where his head hit the drivers side window when they hit the trees.

Even after Highway Patrol talked to daughter and husband about the events that led up to the accident, they never questioned the driver of the truck. Hubby was cited for failure to control, and our insurance would only cover the damage to the van, not any medical on hubby or the kids because hubby was "at fault" ... never really understood that one, and ended up switching insurance company after that.

Which finally brings me to my questions.

1) Based on the information I have given, should the driver of the truck been questioned, and shouldn't/couldn't he have been cited with something as well?

2) Could we have had a case against the state of Ohio for the condition of the road, which was a state highway. (Just given the fact that they started the project, but didn't finish it until months later, and the roadway in it's condition at the time of the accident contributed to the accident)

I know it's too late to do anything about it now, but it has always bothered me.

[CdwJava]

Interesting question.

The problem you have here - regarding "fault" - is that the insurance companies and law enforcement operate under different rules to assign fault. Even if the police find one driver at fault, there is nothing that says that the insurance companies must come to the same conclusions.

Fault (or, as referred to out here, the Primary Collision Factor) is generally determined as the one thing when removed from the incident would have prevented the crash.

In this case, had your husband managed to maintain control of his vehicle, the crash would not have happened. Thus, the PCF belonged to him.

I understand the act may have been unavoidable or difficult to avoid ... but, the evaluation remains.

I don't know the reporting system out there, but out here it is likely that an "associated factor" would be the actions of the other driver (whether or not the actions were unlawful depends on your state's laws) and, perhaps, the condition of the roadway.

Sorry to say, but I think the determination of fault was technically correct ... even if it might not have been a true reflection of hubby's options at the time.

- Carl

[MomIsWorried]

Sorry to say, but I think the determination of fault was technically correct ... even if it might not have been a true reflection of hubby's options at the time.

And while I don't agree that the determination of fault was technically correct, I understand what you are saying.

When the "ambulance chasers" starting calling, heard the story and never called back, that was a major clue that there was nothing we could have done about it at the time.

[CdwJava]

Originally Posted by MomIsWorried

And while I don't agree that the determination of fault was technically correct, I understand what you are saying.

When the "ambulance chasers" starting calling, heard the story and never called back, that was a major clue that there was nothing we could have done about it at the time.

And that should be an indication that the determination of fault WAS, technically (and legally) correct. That's likely how it would have read in my state as well.

Unfortunately, what is correct in the legal sense is not always what people want to hear. I know ... I've done hundreds of these things - and I do ALL the serious injury and fatal accident reports for my agency. Not everyone likes the determination.

However, civil cases often don't decide the same way. I have seen cases that were clearly the legal fault of one party, but the insurance companies or civil courts would either share fault or flip it around. The collision report is not legally binding in those matters. And, at least in my state, we are not allowed to "share" the fault or assign a percentage to fault. We can choose a single PCF and and then up to 3 Associated factors and that's it.

- Carl

[InsuranceLadyAZ]

If I may add to this discussion - why didn't your insurance company pay the medical bills? Those should be paid regardless of fault. Did you get an explanation from the insurer regarding this?