If you are in an accident that is the fault of another driver, you must file a claim against his or her liability insurance. How?
Liability insurance is characterized by something called a third-party claim. I.e., when you are involved in an accident that is the fault of another driver, you are “the third party” to that driver and his or her insurance company. In many cases, this process goes well enough. This blog entry provides important information about the third‑party claims process, and how a car accident attorney can assist you with it. Q&As include:
What is a third-party insurance claim?
Do all states allow third-party insurance claims?
What are threshold conditions in no-fault states?
What is automobile liability insurance?
How do you file an auto insurance claim against someone else?
Should you always file a third-party insurance claim?
What is comparative negligence?
Do you really need a car crash attorney to file a claim against someone else’s insurance?
How much does it cost to hire a car-crash attorney?
1. What is a third-party insurance claim?
In a third-party claim, when you are in an accident that is the fault of another driver, you will make a claim against his or her liability insurance to pay for damages to your car, medical bills, and other losses. Thereby, you are a “third party” to the at-fault driver and his or her insurance company (see Q.4) (see source).
When damages are moderate and/or well-defined (e.g. damage estimates), this process usually goes smoothly enough. But bear in mind that the at-fault driver’s insurance company must process the claim, and there is no real incentive for them to act quickly. They might elect to investigate the accident, with an eye toward contending that you were partially at fault—if not fully.
Also, the chances that the insurance company will choose to investigate the accident grow with the amount of compensation for which their customer (the at-fault driver) is liable; and become exponentially greater if part of your claim involves a personal injury.
Frankly, when an insurance company of an at-fault party launches an investigation of your claim, you should retain the services of a car accident attorney ASAP. Do not go it alone. Insurance companies are savvy at getting you to say and do things that weaken your claim. Do not let that happen.
2. Do all states allow third-party insurance claims?
No. There are 12 so-called “no-fault” states wherein third-party insurance claims can only be made under certain circumstances. These are Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah (see source).
In these states, you must purchase an insurance policy that covers your own injuries and damage. This is called personal injury protection or PIP insurance.
With PIP, you are required to file a claim with your own insurance company without regard to who caused your accident. However, in cases where there are serious injuries or deaths, or if the accident meets certain “threshold conditions,” you must sue the at-fault party to realize fair and complete compensation, which would require the services of a car accident lawyer (see Q.3) (see source).
3. What are threshold conditions in no-fault states?
Depending on the no-fault state in which you reside, if either a certain amount of monetary compensation or the severity of bodily injuries exceeds a certain threshold, you can file a case against someone (see source).
There are two types of threshold levels to consider: monetary and verbal.
Monetary thresholds. These are medical bills you incur that exceed your financial coverage. In some states, this is a set amount (e.g., $1000 in Kentucky, $2000 in Massachusetts, and $4000 in Minnesota). But in many states, the threshold is the ceiling of your PIP benefit amount (e.g., Hawaii, Kansas, and D.C.).
Verbal thresholds. These relate to the magnitude of injury caused by the accident. E.g., death, dismemberment, significant disfigurement or scarring, displaced fractures, loss of a fetus, or permanent injury within a reasonable degree of medical probability.
4. What is automobile liability insurance?
New Hampshire notwithstanding, all states require drivers to have some degree of liability coverage, which provides financial protection should one cause an automobile accident in which property is damaged and/or people are injured. Liability only covers injuries to others and damage to their property. It does not cover the policyholder’s injuries or property damage.
There are two elements to liability coverage:
Property damage, which covers the costs of repairing the vehicles of others involved in the accident (but not the policyholders) (see source)
Bodily injury, which covers medical expenses for those involved in the accident (but not the policyholder)
5. How do you file an auto insurance claim against someone else?
In a sense, the claims process should begin immediately after you have an accident that is not your fault. Of course, if you are significantly injured, you will not be able to do some of what is listed here (a through d). But the rest still applies. That said:
a. After an accident—even a minor one—calm yourself as best you can and call 911. Ask for medical help if anyone appears injured.
b. While you are waiting for the police to arrive, begin collecting important information from the other driver(s) at the scene. You should, at the VERY least, secure a name, address, driver's license, and plate numbers, as well as insurance policy details for all drivers involved in the collision.
c. If possible, take photos at the scene of the involved cars before they are moved. This will help police, insurance adjusters, and other investigators understand the dynamics of the accident (i.e., who hit whom and how).
d. After the vehicles are moved, take photos of each at various angles to document the kind and extent of the damage to each. Be sure also to take photos of all the involved cars, not just your own. You will want these photos in case the issue of comparative negligence arises, and you are found partially liable for damages (see Q.7).
e. In most instances and jurisdictions, the police will gather information from each driver to create a report. By doing so, they will determine who is at fault and issue citations as required. Additionally, they will collect contact information and statements from any incidental witnesses.
f. Only discuss the accident with the police. Limit yourself to basic facts when answering their questions. Do not speculate about anything, because it is too easy to say something innocently that will make you seem partially culpable for the accident—even though you were not. (E.g., if you were coming home late from work and allow that you were tired, the insurance company can seize on that statement to infer that you were impaired by sleep deprivation and thus at fault.)
g. Never admit guilt. You might think the accident was your fault and, naturally, want to apologize. But you very well might be wrong. How? You only observe an accident from your own limited vantage, so you are interpreting events from a single narrow view. Other drivers, passengers, and witnesses will have other perceptions. Their statements will offer additional evidence, which will be considered by the police and your auto-accident attorney to establish who was at fault and how much comparative negligence there might be (see Q.7).
h. Contact your insurance company ASAP as required under the terms of your policy. Describe the accident and provide the information you collected at the scene. Together, your insurance company and that of the other driver(s) will determine fault, taking into account police reports, drivers’ statements, witness accounts, and physical evidence. (It is the other driver’s responsibility to notify his or her insurance company, not yours, and your insurance company will contact them anyway on your behalf.)
Besides the information and evidence that you and the police collect at the scene of your accident, a car accident attorney is skilled at collecting, organizing, and presenting additional kinds of evidence that will strengthen your claim against someone else’s insurance. [E.g. data from vehicles’ event data recorders, electronic evidence (such as cell phone data in the case of distracted driving), manufacturer records, recall information, and more.]
6. Should you always file a third-party insurance claim?
Definitely. Often enough, in the case of minor accidents, an at-fault driver might ask you to forgo calling the police and offer to negotiate an out-of-pocket settlement in an effort to sidestep the claims process so that his or her premium for liability insurance does not increase.
There is absolutely nothing in this for you. First of all, the fact that someone is asking you to do something out of the ordinary should be a red flag about entering into a deal with him or her. But also:
Notifying the police makes the details of your accident a matter of record, which is crucial to prosecuting your claim within the legal system, and without which you would have no way to enforce collection should the at-fault driver choose to stonewall you and not pay. It would be your word against his or hers—even that the accident ever happened—and pursuing your claim would be a legal nightmare.
Further, without the benefit of a proper inspection, you might be unaware of hidden damages to your car, and so negotiate a settlement that is inadequate to pay for all the damage that is discovered once your car is in the shop and “up on the rack.”
In summary, you might think you are “being nice” by helping the at-fault driver avoid contacting his or her insurance company. But you are doing so at great risk to your own legitimate interests.
7. What is comparative negligence?
Comparative negligence is used to allocate blame among drivers involved in auto accidents in proportion to how much they are at fault for causing it. For example, if it is determined that you were 40 percent at fault for an accident and the other driver bears the rest of the blame (i.e., 60 percent), the other driver’s insurance company would only pay you 60 percent of your damages (see source).
There are three types of comparative negligence. They are:
Pure comparative negligence. Thirteen states follow this rule (e.g., California and New York). In them, you can collect damages even if you are assigned 99 percent of the blame. In other words, you can collect the remaining one percent.
Modified comparative negligence. In some states you are disallowed from recovering monetary damages if you are assigned fault above a certain percentage. This is 50 percent or more in ten states (e.g., Colorado and Maine); and it is 51 percent in 23 other states (e.g., Illinois and Oregon).
Slight/gross negligence. This is only recognized currently in South Dakota. In that state, percentages of fault are replaced by “slight” or “gross” contributions to an accident. The award is greater if your contribution to an accident is slight and the other driver’s is gross, wherein “gross” means reckless and conscious disregard for others’ safety.
Regardless of what kind, when insurance companies start talking about comparative negligence, it is time for you to retain the services of a car crash attorney to represent your interests.
8. Do you really need a car crash attorney to file a claim against someone else’s insurance?
Unless you are a car accident attorney yourself, you are likely unaware of all your rights after an auto accident. Insurance companies know this and use it to their advantage. They will try to get you to admit fault—or cast you as the negligent party—to weaken your claim or dismiss it completely.
A car accident that causes significant property damage and/or personal injuries can quickly become a complex legal matter. It is not unusual for more than one party to be at fault. The insurance company for each will be against you. And all of them will be doing whatever they can to pay you as little as possible for your claim.
You should hire a car accident lawyer to protect your legitimate interests.
9. How much does it cost to hire a car-crash attorney?
Galindo car-crash attorneys charge no upfront or out-of-pocket fees. We are only paid a percentage of the compensation we are able to secure for you. So by working with Galindo Law, you incur zero financial risk.
Remember that proper compensation for pain and damages consequent to an auto accident is your right. You are not asking for charity. You deserve to be adequately compensated for your loss.
And thank you for reading our blog!