What do you do when the at-fault party in a car accident claims it was not them but something wrong with the car that caused the incident? Prove that it is still their responsibility. In this episode of On Subrogation: Negligent Maintenance, insurance attorney Jason Sullivan explains how to apply negligent maintenance in auto subrogation lawsuits to support liability arguments against the opposing driver.
In the context of motor vehicle subrogation, negligent maintenance refers to the vehicle owner’s or responsible third party’s failure to adequately inspect, maintain, or repair the vehicle at-fault in an automotive accident. Rather than focusing on negligent action by the driver as the cause of the accident, negligent maintenance theory shifts liability to a third party, such as an auto shop, the vehicle’s owner, a rental car company, etc.
Common examples of reasonable acts of care being neglected include:
- Failure to repair known issues with systems such as braking or power steering
- Ignoring error signals like the engine light
- Ignoring safety recalls
- Allowing tire treads to wear to a point where traction is compromised
- Failing to repair lights on the vehicle that reduce visibility
In uninsured motorist subrogation, negligent maintenance by a third party can open avenues to pursue recovery where the driver does not have an insurer to pursue. Conversely, it opens an avenue to pursue the opposing driver’s assets without proving negligent driving should they be responsible for the lack of care of the vehicle.
Why Talk About Negligent Maintenance in a UIM Subrogation Context?
In the episode, Jason explains that negligent maintenance is most often encountered in uninsured motorist subrogation because:
- The driver does not have insurance to cover their negligence that caused the damage, and
- They are often unaware that they can be held liable for failing to properly maintain their vehicle.
Learn more about subrogating against uninsured and underinsured motorists: Limits vs Excess: Strategies for Successfully Subrogating an Underinsured Tortfeasor.
Upon a car accident, an uninsured motorist is likely to claim that it was not operator error that caused the accident; it was the car. As such, it was out of their control, and they should not be held responsible for the damages. But it is not that cut and dry, as the owner of a vehicle does, in fact, largely have control over the state/function of their car.
A savvy subrogation attorney can beat this no-fault argument with the right strategy, but the key is to be prepared for the opposing party to raise it before the subrogated matter gets to court.
Anticipating the Tortfeasor’s Attempts to Blame the Automotive
Jason offers advice on how to get ahead of a tortfeasor’s attempts to blame the car for the incident that caused the loss:
Does the tortfeasor say something in the police report that appears to shift blame from the operation of the vehicle? Chances are, they intend to continue this line of “it was the car, not me” verbiage, and it is your job as subrogating counsel to prove that they were still responsible. Look to negligent maintenance as the cause of action.
If there is no statement or explanation in the police report, listen to what the tortfeasor says when you talk to them. If they shift blame to mechanics, such as claiming the brakes failed, or the tires slipped, pin them down and get all facts as to why the mechanics could be responsible for those worn-down brakes or bald tires.
Combating the Tortfeasor’s Claims that They Had No Control of the Car
If you are aware someone is trying to/will try to shift blame to mechanical or maintenance problems as the main cause of the accident, the requests you make in discovery are key to arguing the tortfeasor was liable for the malfunctioning part. Make sure to issue discovery for:
Maintenance History
Has the vehicle regularly been taken care of? This would include professional oil changes, tire tread checks, inspections, etc.
Maintenance Records
When was the problem first discovered? Many issues with cars do not happen all at once. Let’s look at two common claims in UIM subrogation:
Bald Tires
- A tortfeasor will claim the tires slipped, and there was nothing they could do. A look at the tires shows they’re bald. That does not just happen; tires take several thousand miles to wear down.
- If the car had been regularly maintained, the driver would have known this was an issue. And if it had not, any reasonable driver should know regardless because their tires would have likely had some slips and slides before this, and a lack of tread is also easily visible every time you use the car.
Bad Brakes
- Say the issue was that the brakes failed to engage completely or at all, and the tortfeasor points to that as the cause of the accident. How could they have known the brakes would fail at exactly that moment?
- This is another case where brakes do not just break overnight. Any reasonable driver would have experienced a little bit of stickiness, more noise, taking longer to come to a complete stop, and other common symptoms. Most vehicles’ brakes are designed to purposefully make noise as they wear down, so the driver is aware that they need to be replaced soon.
Learn more about motor vehicle subrogation cases where tortfeasors try to pass the blame: On Subrogation: No Contact Vehicle Accidents
Asking the Right Questions Up Front
This is where the negligent maintenance action comes in. You have uncovered an issue that it seems like the driver would almost definitely have been aware of before the incident. Depositions can go a long way for a subrogating lawyer building a case that the tortfeasor was, in fact, the party who breached reasonable duty of care.
When speaking to the tortfeasor, be sure to determine:
- How often the vehicle was inspected/maintained
- Who (professional vs at-home) did said work on the vehicle
- What was involved in said work
- Records for claimed inspections/maintenance actually exist
Learn about best practices for being deposed in a subrogation investigation: 13 Guidelines to Get You Through Your Deposition.
Determining Whether Negligent Maintenance Applies to a Subrogation Claim
Understanding and obtaining all of this information will help determine the main question in applying negligent maintenance: Was this a known issue that was ignored?
The subrogating party should walk into court having the defenses already set up when the tortfeasor testifies that the vehicle was the problem in order to avoid responsibility. Yes, the vehicle was the main factor in causing the accident. No, that does not make the other driver exempt from liability, because the car is an extension of themselves and they had control over its condition.
To hold a tortfeasor liable for negligent maintenance, counsel must establish:
- The tortfeasor knew of the issue.
- By continuing to operate the vehicle and/or ignoring the issue, they created a danger.
- The two above variables caused the damage in the subrogation claim.
Want to know more about this subject or other relevant topics in subrogation and insurance law? Visit Rathbone Group’s subrogation Blog, YouTube channel, or subrogation podcast for more free informational resources for insurance industry professionals. Have a question or topic we haven’t covered? Reach out at blog@rathbonegroup.com to see it featured on a future episode of On Subrogation.
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