After any accident or injury, the people or business involved on both sides often immediately start thinking about fault. Who is to blame for the accident or injury? How do we go about proving someone else's fault? Or disproving our own potential blame for the accident? But as this article explains, that may not be the best way to think about the claims process (where an injury settlement is the goal anyway), and in some cases, proving fault isn't even an essential step in the process.
Liability insurance covers nearly every motor vehicle, home, business, and other property. So in virtually every accident, you will need to deal only with an insurance adjuster and not with a lawyer or judge. And making a successful insurance claim usually requires nothing more complicated than providing a clear explanation to an insurance adjuster, in plain language, of how the insured was careless and how such carelessness caused the accident.
If your explanation makes it appear likely that carelessness by the insured person or business caused the accident, the liability insurance company will pay you for your medical costs, for your lost income, and a certain amount for the pain you have suffered. Once an insurance adjuster knows that you understand how the simple rules of liability apply to your accident, the emphasis in your claim will likely shift quickly from whether you can receive compensation to how much that compensation will be.
Most liability claims are settled without anyone ever stepping into a courtroom. So, the process of negotiating with an insurance company does not require that you provide legally perfect "proof" that the insured was negligent and that the negligence caused the accident. To get compensation for your injuries, you need only make a reasonable argument that the insured was negligent, even if there is also a plausible argument the other way.
And in accidents caused by defective products, you don't need to argue at all that the insured was negligent; negligence is automatically presumed under a rule called "strict liability."
Making a reasonable argument that the insured was negligent shows the insurance company that if the matter later becomes a lawsuit, there is a good possibility that a court would find its insured to be legally responsible. If that were to happen, the insurance company would be on the hook for your damages, court costs, and attorney's fees. That's a lot of money, and the insurance company knows it can save quite a bit by settling with you out of court.
A small percentage of injury accident claims are fought out in court instead of being settled beforehand. And if the matter does get to court, you can usually bet that the issue of fault is in play, and in most injury lawsuits one of the things that the injured person (the plaintiff) must establish is that the defendant was negligent. Proving negligence means proving four basic things:
For more information and tips on dealing with the insurance adjuster in a personal injury claim, see the following related articles:
This article is an excerpt from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo)