Expert: Richard Hixenbaugh - 6/16/2009

Question
My daughter was recently in an accident. She was traveling along an interstate
and could not avoid a vehicle stopped, for no apparent reason, with no brake
or 4-ways on in the right lane. The State Police arrested other driver for DUI
and no tickets were issued to my daughter.
Now the insurance company says the accident was totally my daughter's fault
because she did not avoid the stopped vehicle! Because of this my rates will
probably increase.
Is there anyway to change the insurance company's ruling to match the police
determination of fault? They do not seem to want to listen to our reasoning,
even though the proof of fault on the police report was the other driver.

Answer
Hi Wayne,

There can be a difference between what the police deternmine and what an insurance company determines. The insurance company's decision is based on a legal principal known as "Last clear chance". This means that the person who had the last clear chance to avoid the accident is the one most at fault. In this case, the vehicle your daughter hit was stopped in the road and she rearended it. Even though the driver was cited for DUI, the car being stopped in the road was not the direct cause of the accident. The law requires that your daughter be aware of everything that is going on arround her. She should have noticed the car in front of her was getting closer and closer and slowed or taken evasive action to avoid the collision. The fact that the other driver was drunk is not as relevant as the fact that your daughter should have been able to avoid the collision if she was paying attention. The other vehicle could just as easily have been broken down or the driver could have had a heart attack or stroke.

That having been said, I think the other driver should have to accept at least some of the liability. However since the insurance company has already declined to accept liability, you would likely have to file suit against the other driver to have a judge decide who was at fault. You just may get a judge that would put all of the blame on the other driver because of the DUI.

I hope this helps
Richard Hixenbaugh