What happens when your insured is in a car accident that does not involve any contact with the other car? In this episode of On Subrogation: No Contact Vehicle Accidents, RG insurance attorney Jason Sullivan offers guidance on how to handle non-contact accidents that result in subrogation claims.
Jason poses a hypothetical to introduce the discussion of non-contact accidents, subrogation investigation, and fault:
Your insured is driving straight down a road towards an intersection. Upon approaching the intersection, another car makes an abrupt left turn right in front of them. Your insured swerves to miss the car. They succeed in avoiding the car, but in the process, they hit another car or object, causing damage.
As a subrogation professional, this claim eventually arrives on your desk, with the other driver’s carrier refusing to reimburse because there was no contact between their insured’s car and your insured’s.
What do you do?
1. Determine the Duties of Each Party in the Disputed Incident
As always, establishing the facts of the accident is an immediate and pressing task; a the core of any no-contact accident subrogation claim is whether each driver complied with their respective duties of care. Even without physical contact, if a driver’s actions created a foreseeable hazard that forced another motorist into evasive action, they carry liability for the loss.
Clearly defining what each party was legally required to do at the intersection provides a subrogation consultant and counsel framework to analyze whether a breach occurred and whether that breach set the chain of events in motion. In our hypothetical:
- Your insured had a duty to only proceed through the intersection upon a green light, and it would be expected that a reasonable driver would also scan the intersection for cars before proceeding.
- The other driver had a duty only to turn left if (a) the light was green and (b) there were no oncoming cars. It would also be expected that a reasonable driver would understand what a safe distance is to turn left in front of an approaching car.
2. Know the Jurisdiction’s Fault Laws for Insurance Lawsuits
Does the jurisdiction in which the subrogation case is brought use comparative or contributory fault when determining claims awards? Understanding whether comparative or contributory fault principles apply allows subrogation professionals to realistically assess recovery potential and avoid allocating resources to possible subrogation claims where there is no right to recovery, regardless of the underlying facts.
- In pure comparative fault, the plaintiff (your insured) can recover even if they are at fault, but damages are reduced by the percentage of fault, which is decided by the judge/jury.
- In modified comparative fault, the same applies, but only if it is determined that the plaintiff is less than 50-51% at fault.
- In contributory fault, if the court finds your insured is even 1%+ at fault, they can bar the right of subrogation recovery.
Learn more about variations in state subrogation laws governing comparative vs contributory fault: Subrogation Fault Lines Spread Across States.
3. Determine the Fault of Your Insured in the Accident
Even if the other driver initiated the dangerous situation, your insured’s conduct will be scrutinized by the opposing party, whether the tortfeasor or their carrier. The investigation phase of the subrogation process helps distinguish what a reasonable evasive action under a sudden emergency is versus what is avoidable behavior that could shift blame to your insured and limit or bar the right to recover the claim.
Carefully evaluating your insured’s actions is essential to countering arguments that they contributed to the loss. The investigator, lawyer, or claims adjuster managing the case should have your insured relay the story in detail. In our hypothetical subrogation claim, for instance:
- Were they speeding? Did they brake too late because they were distracted? On their phone? Reaching for something that fell?
- Or was it purely that the other car abruptly turned in front of them, and a sudden emergency decision would apply?
Learn more about the Sudden Emergency Defense: How Does a Sudden Emergency Affect Liability for a Loss?
Detail-Oriented, Cost-Minimizing Subrogation Strategy is Key
Often, there is recourse to recover under a subrogation theory in many accidents that involve zero contact between your insured and the opposing party. However, it takes a detailed approach to investigation and an understanding of the fault laws of the relevant jurisdiction(s). Rathbone Group is a subrogation law firm that takes a cost-effective approach to claims with jurisdiction-specific experience and a contingency fee structure that maximizes potential subrogation recovery in every claim.
For more educational guides and tips on the subrogation process, visit our YouTube channel, blog, and podcast library for more of On Subrogation: Rathbone Group’s free informational resource for subrogation and insurance professionals. Have a suggestion or question that we have not yet covered? Reach out at blog@rathbongroup.com or info@rathbongroup.com for more.