McQuiston: How Insurance Decides Who’s At Fault

By ALLEN MCQUISTON
Jemez Insurance Agency
Serving Los Alamos Since 1963

After a car accident, most people assume there’s going to be a clear answer. Someone ran the red light. Someone rear-ended someone. Someone was texting. Someone wasn’t paying attention.

But when insurance gets involved, the question isn’t just what happened. It’s who can be proven responsible, and how much.

And that process is more structured—and more frustrating—than most people realize.

First, “fault” is not a feeling. It’s a legal decision. Insurance companies don’t decide fault based on who seems nicer, who’s more upset, or who tells the story better.

They decide based on:
  • Traffic laws
  • Evidence
  • Statements
  • Damage patterns
  • Independent reports
And in many cases, fault is split, even when one driver feels completely innocent.
The big misconception: the police always decide fault
Police reports help a lot, but they’re not the final word.
An officer can:
  • Write down what they observed
  • Document the scene
  • Record statements
  • Issue citations
But insurance still does its own investigation.
In fact, it’s possible for:
  • A police report to suggest one thing
  • Insurance to decide something slightly different
  • Or both insurance companies to disagree

What insurance actually looks at:

When insurance is deciding fault, they’re usually building a case using a few key pieces:

1) Statements from both drivers

They compare the stories and look for inconsistencies.
If one driver says:
“I was stopped and they hit me,”
and the other says:
“They stopped suddenly and I couldn’t avoid it.”
insurance has to decide which version is supported by facts.

2) Photos and damage patterns

This is huge.
Damage location often tells a more honest story than people realize.

Example:

  • Rear bumper damage usually supports a rear-end collision
  • Side impact damage may support a failure to yield
  • Angle of damage can show who entered the lane first
3) Witnesses
Neutral witnesses carry a lot of weight.
But not all witnesses are equal.
A passenger is usually considered biased. A random bystander is stronger.
4) Dashcam footage
If there’s clear video, it can settle the case instantly.
But if it’s blurry, missing the moment of impact, or doesn’t show the traffic signal, it might not fully solve it.
5) Road conditions and timing
Insurance considers things like:
  • Weather
  • Visibility
  • Speed
  • Skid marks
  • Distance between vehicles
What happens when both sides disagree?
This is where people get surprised.
If you file a claim with your own insurance (especially if you have collision coverage), your company may pay for your damages first.
Then they try to recover the money from the other driver’s insurance in a process called subrogation.
But if the other company denies responsibility or claims partial fault, it can turn into:
  • Negotiations
  • Evidence reviews
  • Arbitration between insurance companies
This is one reason claims can take longer than people expect.
Yes, you can be found partially at fault
Even if the other driver clearly caused the crash, you can still be assigned a percentage of fault.
Example:
  • Someone pulls out in front of you
  • But insurance argues you were speeding
  • Or following too closely
  • Or didn’t brake fast enough
Now fault might be:
  • 80% them
  • 20% you
That 20% can affect:
  • Whether your deductible gets reimbursed
  • Whether your rates increase
  • How much your insurance pays
Why this process can feel unfair
Because insurance decisions aren’t based on “what feels obvious.”
They’re based on what can be supported.
And if evidence is weak, insurance companies tend to protect their own driver.
That’s why the same accident can be seen two ways:
  • Your insurance thinks you’re not at fault
  • Their insurance thinks you are
  • Both companies dig in
The smartest thing you can do after an accident
If you ever want fault to be decided fairly, the best thing you can do is help create clean evidence.
Right after an accident:
  • Take wide photos of the scene
  • Take close-ups of damage
  • Photograph traffic signs and signals
  • Get witness names and numbers
  • Ask for the police report number
  • Write down what happened while it’s fresh
Even 2 minutes of effort can prevent weeks of arguing later.
Insurance doesn’t decide fault based on who’s most upset.
They decide based on:
laws + evidence + what can be proven.
And when the evidence isn’t clear, fault becomes a negotiation.
That’s why the best protection isn’t just having insurance.
It’s having insurance and being prepared to protect your side of the story.
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