It is a common belief that in a rear-end accident, the driver who rear ended the other car is unquestionably the liable party 100% of the time. Should be an open-and-shut matter for a subrogation lawyer. But is that always the case? In the following episode of On Subrogation, insurance attorney Mark Damian discusses when the rear-ender may actually not be the liable party in an auto insurance subrogation claim.
If you’re thinking, “How on earth can liability be disputed in a rear-end accident?” you’re not alone. But like everything in the field of subrogation law, even claims that should take a phone call or a simple subrogation letter to resolve can get complicated quite quickly.
As to why, we should first consider what constitutes liability in a subrogation claim for rear-end auto accidents:
- A driver must collide with a car ahead of them and in the driver’s path of travel.
- The car must be (a) stationary or (b) moving in the same direction as the driver.
- The other car must have been reasonably discernible to the driver.
- The car must not have suddenly appeared in the driver’s path of travel.
So let’s unpack how these liability requirements may apply in a rear-end claim:
Reasonable Discernibility: What Did the Driver Perceive?
This defense usually centers on #3: the other car must have been reasonably discernible to the driver. But discernible does not just mean visible; it means the driver has the time and ability to understand the nature of the object and its distance, speed, etc. For example, a person is easily discernible standing right in front of you, but from 20 feet away in a dim room, you lose important details of the shape, activity, and intent of the person. They are visible but not discernible.
In our subrogation context, if it is a clear afternoon, drivers can likely see an object ahead of them in the road. But is it a car? Maybe it is extremely sunny, and the road is reflective. Or maybe the road is extremely windy and tree-lined, hampering the driver’s ability to discern traffic. Evening conditions can reduce discernibility, especially around dusk. And then there are weather factors to consider, such as snow, rain, fog, or sleet.
In a subrogation claim, these details can be important when evaluating rear-end liability. They should be immediately and thoroughly reconstructed using resources such as witness testimony, aerial photographs, drone footage, Google Earth, weather history, etc.
Sudden Appearance: But You Cut Me Off!
Reasonable discernibility is often accompanied by #4 in these defenses: Did the car suddenly appear in the driver’s path of travel? Best practice for a subrogation lawyer navigating this type of claim is to (1) take depositions of those involved and (2) review the vehicles’ electronic data recorders. EDRs provide data on speed, braking, and steering; it’s the closest the investigator can get to what happened right before the impact.
These subrogation claims are heavy on the forensics: investigators must ask detailed questions about initial observations, speed estimates, braking marks, distance between vehicles, roadway conditions, braking systems, and, with newer vehicles, variables like lane or braking assist. Things get even more complicated if there is a self-driving vehicle involved in the insurance dispute.
A detailed reconstruction of the events around the impact put subrogating counsel in a strong position to determine whether the driver had enough time to perceive, discern, and brake before hitting the car ahead.
Multi-Car Accidents: Whose Fault Was it Really?
Like many types of subrogation cases – consider claims around property damage, utility failures, and fire damage subrogation – there might be more than two parties involved in the accident, so identifying the proper defendants is key. Consider a three-vehicle accident: the insured slows to a stop, the vehicle behind them stops safely, but then a third vehicle rams into the second, causing the second vehicle to rear end the insured. The third driver is the liable party, right?
Once again, there might be more to it than that, and that is why subrogation investigations by claims adjusters and experts are such a critical component of achieving recovery. What if the second vehicle had taken a sudden evasive action or was texting and nearly ran off the road, causing a distraction? If the third driver was simply reacting to hazard(s) caused by the second vehicle, a court could reasonably find the second vehicle partially liable because it created a sudden distraction/hazard for the third driver.
However, this is another step of the subrogation process where witness testimony and depositions can direct the course of the case. If the insured saw the second vehicle veer off the road in their rearview mirror and there was a period of time that passed before the impact occurred, that could break the chain of causation, leading a court to determine the third driver independently caused the accident.
In Rear-End Auto Subrogation, Data Drives Chance of Recovery
Across the insurance and subrogation industry, the chance of successful recovery hinges on evidence – the amount of data collected, the investigation’s proximity to the incident, and the collective veracity of the compiled evidence. It is critical to gather as much evidence as possible before making that phone call or sending that subrogation demand letter.
For more educational resources on subrogation law, strategy, and process, visit Rathbone Group’s Blog, YouTube On Subrogation series, or our subrogation podcast channel. Questions or suggestions for a topic we haven’t yet covered? Inquire at info@rathbonegroup.com for more on our subrogation services or reach out to blog@rathbonegroup.com to see your idea featured on a future episode of On Subrogation.