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Disputing determination of fault - Injury accident

by E's Mom
(Austin TX)

Son is taking protected left hand turn and is hit by driver running red light. Time was approximately 12am. less than 2 blocks from our home.

Driver approaches one of the guys at the scene thinking it’s my son and offers to pay for damages if police aren’t called. Finally someone points him in the direction of my son who is visibly injured , before actually talking to my son driver hears sirens and takes of f on foot.

Son’s truck is t-boned on passenger side-front end of other car with lots of damage. I , mom, was at scene before police so I observed everything until the end. Son is injured, entire side of face is already bruised and swollen. EMS assures me that probably no concussion and check bone is not smashed.

I opt to take him home and keep an eye on him. Next day eye is bad - we go to ER - cat scan shows an orbital blowout --- more than half of the floor of the eye socket is destroyed. ER doc sets us up with a eye surgeon we go in on the following Monday. Surgery is the following Tuesday.

Has to get artificial plate inserted - half of face will stay numb for up to one year and may not get full feeling back. No vision loss thank goodness.

I file claim with my insurance company. When I finally talk to adjuster he is very interested in the injury.

Around this time I’m contacted by a detective who is assigned to case - person that talked to driver at scene identifies him in line up -- driver is charged with class C felony for not rendering aid.

In interviewing witness’s it’s discovered that driver has told several lies. He gives detective insurance information that is put on the police report but we find out it’s false information. Adjuster finds out about another policy after he was able to reach other driver. This is two weeks later.

We also find out that driver was cited for running light. I offered number of detective and additional witness’s but my adjuster declines. My son did give a statement to our insurance company , a mistake I hope I don’t live to regret.

Yesterday I receive the following two letters from insurance company dated the same date :
XXXXX has filed a liability claim against your policy ….

In response we have taken the following action: Made an offer to settle the bodily injury claim

Letter two : Settled the bodily injury claim

Based on our liability decision, we will not pursue collection of any damages you sustained including your deductible, if applicable. Therefore, we surrender, to you, our rights to recover your damages.

I contact (by email in hopes of having something in writing) and he replies telling me why they settled. He has determined that even though driver left scene he is going with that drivers statement and finding my son at 80% fault.

The entire settlement to other driver was less than $500.00. He also says his vendor (investigator) never saw the light go to a green arrow. I now have to go collision and have my rates hiked because of this decision. He never contacted any witness so he doesn’t even know the capacity of the other driver that night before fleeing. The other drivers statement claims he veered to the left to try and avoid but his car couldn’t possibly have wound up where it did had that been the case.

There was a witness there that saw the position of the cars before they had to be moved . He also stated part of his decision was based on the other driver not getting to give his version to APD because he left the scene.

I want to note that since I was mostly an observer when APD was at scene I saw the officer observe the light for some time , examined both autos , curbs etc. So they didn’t just show up and say give us your version and we’ll make it his fault and all go home.
Has anyone had this happen?

Do I have any rights here as far as what determined their decision and how much was paid to the other driver? Is this common for them to totally blow off an insured? The hit and run driver would appear to be in the good hands of my all state coverage and I out in the cold.

On the bright side after my adjuster stating (prior to being able to reach other driver for a statement) that if he couldn’t reach the other driver he would have to take my son’s word for what happened.

That gave me bad vibes so I consulted with an attorney I was referred to who seems to think I have a darn good case. My insurance company isn’t aware we have an attorney. I felt guilty about retaining an attorney for my son but sure am glad I did. From the beginning I really just wanted the truck repaired and my out of pocket back.

Attorney knows about settlement from my company but not the determination of fault - he told me to ask since I received nothing in writing about the settlement. I just found out late yesterday and will give him the information on Monday.

Everyone says attorney will be able to fight this and I hope so because I’m truly shocked at the determination. He’s basically calling my son and APD liars.

Is there really a chance of having the fault adjusted? I’m also concerned this will effect the determination of fault with the other insurance company as well and that is the one we will be dealing with.

I’m trying not to be emotional but I truly feel my company is not being fair and totally going against my son. Is this unusual for an insured’s own company to do this? Btw - I’ve never filed any claims with them in the past. Thanks for any reply!


Hello E's Mom,

Well. It’s a good thing you have an attorney. Fighting your own insurance company on fault can be very hard (I am not trying to scare), but it is s fact. The problem is that most auto policies have something called ‘Right of Settlement Claim’ please see my notes on that clause here:

This clause gives the insurance company a lot of power. Although they will not admit, they are settling the claim this way because of business reasons.

It has nothing to do with fault or justice, but all to do with the fact that they believe the other party can get a lawyer and they would have to pay too much to defend you (better to give this guy $500 now, than have to hire a lawyer to defend and have to pay the lawyer $1,000).

In the facts above, it sounds like an “arguable case” for both sides. The point of impact on your son’s car is to the front-side. In addition, he is making a left which in most states (TX probably also), the person making the left must yield the right of way to incoming traffic.

However, the other driver was cited for running a light???

If this is the case, this can change the entire situation. Again, a lawyer can help here because even on the face of the Right of Settlement clause, the insurance has a duty to advocate and defend YOU. That probably will be one of your lawyer’s moves.

There is really nothing I can tell you here other than this is common. Insurance companies do make business decisions all the time and they have clauses on the insurance policy that supports their position.

At this point you are represented and that is the best cause of action for you.

I hope this help and I truly hope your son’s eye and injury recovers promptly.

Good Luck

Comments for Disputing determination of fault - Injury accident

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Apr 12, 2009
Well - this is the reason for this website
by: Hector

Hello E's mom,

You are correct, this is very much unfair. The sad thing is that most insurance companies are about the same. Allstate is aweful and truly, it should go out of business. It is a very bad insurance company. Please see: Our consumer reports. Allstate is 49th out of 50. It's been on 50th for about 6 months, but it moved up 1 spot.

You should file a complaint and talk to your lawyer. Again, if there is a protected left and the truck was t-boned, then he might be 0% at fault.

Will the insurance company come after your for 80% or will they take that. They might, they might not. It will between the insurance companies. In the good end, they have settled with him so it appears that the injury, pain and suffering is done. You (or your policy) would have to pay for his damages (car) at that rate 80%. However, they might agree to settle for more or less. it would be up to the adjusters to decide.

You can push this matter by either going to court and/or going to small claims (please our our section here).

Regarding your rates, consider getting a quote now (while the claim is pending.) You can lock rates with other insurance companies now before they jack up your prices (especially if Allstate believes you will switch insurance companies. We recommend this cite for quotes: Get a quote now

Regarding the Recorded Statement. I believe your assessment is 100% correct. You should probably never give a recorded statement to anyone. There is no good reason (for you, very good for the insurance company) to give one. There is a lot of debate on this, I have written some notes on that subject. Here they are:

Recorded Statements

Good Luck

Apr 12, 2009
Disputing determination of fault - Injury accident
by: E's Mom

Thanks for your quick response! I know it will be hard to fight my insurance company?s decision, in fact it looks to me like a liability issue requires court proceedings. I?m more concerned with the other insurance company, will they automatically go with the 80/20 because my insurance company did?

I feel like my insurance company made no attempt to side with me; in fact just took the word of other driver who chose to leave the scene. For instance, APD told me that although their investigation supported my son?s version I might be out of luck because most hit and runs are because the driver has no insurance; one has to wonder then why the driver ran since he had insurance.

My adjuster doesn't know he wasn't falling down drunk who surely would have effected their decision but they never contacted any witness that talked to the driver before he fled. I do plan to make a complaint to the Dept of Insurance.

My son says he had a protected green arrow and although from a defensive driving standpoint he still should have never assumed the other driver wasn?t going to stop but it is the reason the other driver got cited.

He did not get hit on the front end he was ?t-boned? exactly in the middle of his truck. The one good thing was they didn?t total the truck and it was marginal - I really wanted them to repair as the engine is in perfect running order.

As tempting as it is for me right now to just toss in the towel by getting my out of pocket back by using my PIP and taking it in the a** by being out the $1000.00 for the collision deductible and higher rates I?m annoyed enough to want to fight this.

I?m hoping when shopping for other insurance with another company that they take into account that the other driver was cited and not kill me on rates. Sadly I may have to drop collision on my son if rates go to high.

I certainly feel that my insurance company sends a message about not being responsible and running from an accident only to show up later and still win. I so want to blast the adjuster but I will stay silent since there is possible future litigation.

It?s allstate btw and from what I?m reading they aren?t the best insurance to have when you have a claim. My son will be fine but through this we?ve had to learn the hard way - you assume you are protected and that?s not necessarily the case.

The main thing I?d do different is not allow him to give a statement to our insurance company although every where you read it says that?s ok. Thanks for your advice.

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