How Do Insurers Use Comparative Fault To Reduce Payouts

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Comparative fault, as defined by Civ. Code § 1714, allows an insurance company to reduce the amount they pay you based on their assessment of your own negligence. They’re essentially arguing that you contributed to the accident, and therefore, you shouldn’t be fully compensated. The problem is, ‘negligence’ is often a subjective term, and insurance adjusters are trained to find any possible reason to minimize their payout.

It’s important to understand that California follows a “pure” comparative fault system. This means you can recover damages even if you’re 99% at fault. However, your recovery is reduced proportionally to your percentage of responsibility. So, if you’re found to be 30% at fault, you’ll only receive 70% of your total damages. That 30% reduction can equate to tens of thousands of dollars lost, which is why fighting this assessment is so important.

After practicing personal injury law in San Diego for over 13 years, I’ve learned how insurance companies operate. Trained by a former insurance defense attorney, I have intimate knowledge of how these adjusters evaluate, devalue, and deny claims. They’ll scour the police report, the accident scene, and even your social media for anything that could be construed as negligence – even if it’s a stretch. They might claim you were speeding, distracted, or failed to mitigate your damages after the impact.

How Do Insurance Companies Determine My Percentage of Fault?

Insurance companies will typically rely on a few key pieces of evidence to determine your percentage of fault. First, the police report is often the starting point. They’ll analyze the officer’s observations, witness statements, and any citations issued. However, police reports aren’t always accurate and can be biased. An experienced attorney will investigate the accident independently, interviewing witnesses and gathering additional evidence.

Next, they’ll examine the physical evidence, such as skid marks, vehicle damage, and the location of the vehicles after the impact. They’ll often hire accident reconstruction experts to create a detailed analysis of the accident dynamics, looking for any factors that suggest you contributed to the collision. It’s crucial to have your own expert review their findings, as these reports can be heavily slanted in favor of the insurance company.

Finally, they’ll look at your statements – both to the police and to the insurance adjuster. Be incredibly careful about what you say, as anything can be used against you. Never admit fault, even if you think you were partially responsible. It’s best to consult with an attorney before making any statements to the insurance company.

What Evidence Can I Use to Counter Their Claims of Fault?

Fortunately, there are many ways to counter an insurance company’s claims of comparative fault. One of the most effective strategies is to gather your own evidence. This includes photos of the accident scene, witness statements, and any available video footage – such as dashcam recordings or surveillance cameras. In San Diego, obtaining dashcam footage is becoming increasingly common and can provide crucial evidence in your favor.

It’s also important to document your injuries and medical treatment thoroughly. This demonstrates the severity of your damages and helps to establish a clear link between the accident and your injuries. Keep detailed records of all your medical bills, therapy appointments, and lost wages. A strong medical record can help to offset any attempts by the insurance company to minimize your damages.

Finally, don’t underestimate the power of a detailed accident reconstruction report. Hiring an independent expert can help to challenge the insurance company’s findings and provide a more objective analysis of the accident dynamics. They can often identify factors that support your version of events and refute the insurance company’s claims of fault.

What Happens if We Disagree on the Percentage of Fault?

If you and the insurance company can’t agree on your percentage of fault, you may need to enter into mediation or arbitration. Mediation involves a neutral third party who helps facilitate a settlement negotiation. Arbitration is a more formal process where an arbitrator hears evidence and makes a binding decision. In San Diego, many insurance policies require arbitration to resolve disputes.

It’s important to be prepared for either of these processes. An experienced attorney can help you gather the necessary evidence, prepare your case, and advocate on your behalf. They can also negotiate with the insurance company to try and reach a fair settlement. Remember, insurance companies are often willing to settle for less than they initially offer, especially if you have a strong case.

Navigating comparative fault can be complex, and it’s easy to feel overwhelmed. This is why it’s so important to have an attorney on your side. They can protect your rights, investigate the accident thoroughly, and fight for the compensation you deserve.

Can I Still File a Lawsuit if the Insurance Company Refuses to Pay?

Yes, if the insurance company refuses to pay a fair settlement, you have the right to file a lawsuit. This allows you to take your case to court and have a judge or jury decide your percentage of fault and the amount of damages you’re entitled to. However, litigation can be expensive and time-consuming, so it’s important to weigh the costs and benefits carefully.

An experienced attorney can help you assess the strength of your case and determine whether litigation is the right option. They can also handle all the legal paperwork, represent you in court, and advocate on your behalf. Litigation can also serve as a strong signal to the insurance company that you are serious about your claim and willing to fight for your rights.

Filing a lawsuit isn’t always necessary, and many cases are resolved through negotiation or mediation. But knowing you have that option can give you leverage in your dealings with the insurance company. It’s about understanding your rights and protecting your financial future after an accident.

What Should I Do If I Receive a Notice From the Insurance Company About Comparative Fault?

If you receive a notice from the insurance company outlining their assessment of comparative fault, don’t panic. This is simply their initial offer, and it’s often a lowball number designed to pressure you into settling for less than you deserve. Don’t sign anything or make any statements to the insurance company without first consulting with an attorney.

Instead, contact an experienced personal injury attorney immediately. They can review the notice, investigate the accident independently, and advise you on the best course of action. They can also negotiate with the insurance company on your behalf and fight for the compensation you’re entitled to. Remember, you have rights, and an attorney can help you protect them.