This article is a companion piece to this video

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.

Successfully Subrogating a No-Contact Automotive Accident Claim

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 right in front of them. Your insured swerves to miss the car. They succeed in avoiding the car, but in the process hit another car or object, causing damages. 

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. In order to prove negligence, you must prove there was a breach of duty of care. 

• Your insured has 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 is a safe distance 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? This will affect whether or not you can recover damages, as well as give you an idea of whether it is worth it to try.

• In pure comparative fault, the plaintiff (your insured) can recover even if they are at fault, but damages are reduced by percent of fault, which is decided by the judge/jury.
• In modified comparative fault, the same applies, but only if it is determined 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 comparative and contributory fault with our article: Subrogation Fault Lines Spread Across States)

3. Determine the Fault of Your Insured in the Accident

Understanding the facts of the case and the jurisdictional environment around insurance disputes, ask your insured to tell you the story in detail. 

• 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 sudden emergency decision applies? 

Listen for evidence to prove there is no (or only slight) fault.

(Learn more about the Sudden Emergency Defense with our article: How Does a Sudden Emergency Affect Liability for a Loss?)

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. With a subrogation law firm that takes a cost-effective approach to claims, like Rathbone Group, you can ensure you maximize your chances of recovery.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.