In theory, the Fault Determination Rules are supposed to make it easier to establish which party is at fault for an accident. However, the application of these Rules to the unique set of facts that surround every motor vehicle accident, is anything but straightforward.
What are the Fault Determination Rules?
The Rules are located in the Insurance Act, R.S.O. 1990, c. I.8, Reg. 668. They contain descriptions of dozens of common motor vehicle accident scenarios, along with accompanying diagrams, and a percentage assignment of fault. When an accident is reported to an insurance company, they will review the Rules and use them as a tool to determine the degree of fault to be assigned to their insured. If the insurance company cannot select a diagram which adequately represents the accident, then they will apply the ordinary rules of negligence.
The Fault Determination Rules are only used to establish the degree of fault as it pertains to property damage (which insurance company should cover the cost of repairs, or pay the deductible for example). The Fault Determination Rules do not decide liability in personal injury claims in which a court action is advanced on behalf of an injured driver or passenger.
If the Fault Determination Rules say that I am at fault, can I still sue?
Unfortunately, the Rules do not contemplate many critical and variable factors, which are unique to each accident, including: weather conditions; cell-phone use; vehicle condition; traffic conditions; and, road conditions, to name but a few. Even if your insurance company determines that you are at fault, this does not preclude you from commencing a lawsuit. Civil negligence exists separately from the Fault Determination Rules. This is where an experienced personal injury lawyer can assist, by looking at the nuances of the case, and determining whether there are specific facts that raise a likely prospect of success.
What other tools are used to determine fault in a lawsuit?
If an accident is reported to the police, or to a Collision Reporting Center, the resulting motor vehicle accident report can be a very important tool to determine fault. However, the police typically arrive at an accident scene after the fact, so the information contained in the report (vehicle speed or traffic signal color for example) are often gleaned from speaking with the involved parties and other witnesses, and may not be entirely accurate. Be sure to point out any inaccuracies on the police report to your insurance company when you report the claim.
Witness statements are also an invaluable tool. If you should be involved in an accident, and speak with a witness, it is always advisable to write down their name and contact information. Do not assume that the police will do so.
Will my premiums increase if I am involved in an accident?
The short answer is maybe. A driver who is found under the Fault Determination Rules to be more than 25 percent responsible for causing an accident will see an increase in their auto insurance premiums.
A qualified personal injury lawyer can help you through this challenging process.
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