Steven A. Bagen | July 23, 2024 | Personal Injury
An insurance company determines fault by launching an investigation, led by an adjuster, to figure out who was negligent.
The adjuster’s job is to gather and analyze several key pieces of evidence. This includes the official police report, statements from drivers and witnesses, photos of the accident scene and vehicle damage, and sometimes even traffic camera footage or data from a vehicle’s onboard computer.
They compare this collection of evidence against Florida’s traffic laws to establish which driver failed to act with reasonable care. In Florida, this process is shaped by a legal concept called comparative fault, which means they can assign a percentage of blame to each driver involved.This determination is not always straightforward or fair, and the insurance company’s decision directly impacts how much compensation you receive. If you have questions about your accident and how fault might be determined, call us at (800) 800-2575.
The Adjuster’s Playbook: What Evidence Do They Actually Use?
When an insurance adjuster begins their investigation, they are trying to piece together a puzzle. They weren’t at the scene, so they must rely on the evidence available to reconstruct the moments leading up to the collision.
The Initial Foundation: The Police Report
The police report is typically the first document an adjuster reviews. It provides an official, third-party account of the incident, created by a law enforcement officer at the scene. It serves as the bedrock of their investigation.
What they look for:
- Officer’s Narrative: This is the officer’s summary of how the accident occurred, based on their observations and the statements they took.
- Diagrams: A sketch of the accident scene shows the final resting positions of the vehicles, which can help verify the sequence of events.
- Citations: Any traffic tickets issued at the scene are a strong suggestion of fault. If one driver was cited for running a red light, for example, that weighs heavily in the adjuster’s analysis.
- Statements: The report will contain summaries of what you, the other driver, and any witnesses said immediately after the crash.
While insurers rely heavily on police reports, these reports are not always admissible as evidence of fault in a Florida court.
Recreating the Scene: Physical and Photographic Evidence
The location of the damage on each vehicle helps confirm how the collision happened. A dent on the passenger-side door tells a very different story than a crumpled rear bumper. Adjusters use this information to verify the accounts provided by the drivers.
They will also scrutinize any photos you took at the scene, as well as images from nearby surveillance or traffic cameras if they are available. They look for skid marks, the location of debris, and the condition of the road to build a complete picture of the environment at the time of the crash.
The Human Element: Your Recorded Statement
The other driver’s insurance adjuster will almost certainly ask you to provide a recorded statement. Their goal is to get your version of events on the record, but they are also listening carefully for any inconsistencies or admissions that could be used to assign fault to you.
For instance, a simple, polite “I’m sorry” at the scene could be twisted into an admission of guilt. Likewise, saying something like “I wasn’t paying full attention” would be used to argue that you share some of the blame. Always speak with an attorney before providing a recorded statement to another driver’s insurer to ensure your rights are protected.
Corroborating Stories: Witness Testimony
An adjuster will likely contact anyone listed on the police report to get their account of what happened. A neutral third party who confirms your version of events can significantly strengthen your position and counter any attempts by the other driver to change their story.
How Florida’s Laws Influence the Insurance Company’s Decision
The evidence is only one part of the equation. The adjuster must then apply that evidence to Florida’s specific traffic and insurance laws.
Why Does Fault Matter in a “No-Fault” State?
Florida is a “no-fault” insurance state, a term that is frequently misunderstood. This system means that you first turn to your own Personal Injury Protection (PIP) coverage for your initial medical bills and lost wages, regardless of who caused the accident.
However, fault becomes extremely important for two main reasons:
- Property Damage: The no-fault rule applies to injuries, not vehicle damage. The at-fault driver’s insurance is responsible for paying to repair or replace your car.
- Serious Injuries: If your injuries are significant and meet a certain legal threshold (such as permanent injury), you can step outside the no-fault system. You can then file a personal injury claim against the at-fault driver for damages your PIP doesn’t cover, like pain and suffering.
Understanding Modified Comparative Negligence
Florida follows a “modified comparative negligence” rule. This is a legal concept that simply means your compensation can be reduced by your percentage of fault. If you are found to be more than 50% at fault, you are barred from recovering any compensation at all.
Here’s how it works: Imagine you are awarded $100,000 in damages, but the insurer determines you were 20% at fault for the accident because you were slightly over the speed limit. Your award would be reduced by 20%, leaving you with $80,000.
This is precisely why insurance companies conduct such thorough investigations. Even assigning a small amount of blame to you can save them a substantial amount of money. An average car insurance premium already rises by about 42% after a single at-fault accident. Our role at Steven A. Bagen & Associates, P.A. is to protect you from an unfair allocation of blame and pursue the maximum compensation available under the law.
The Rise of Technology in Fault Investigations
Insurance investigations have evolved beyond traditional evidence collection. Insurers now frequently use modern technology to get a more detailed and objective picture of how an accident happened.
Event Data Recorders (EDRs): The “Black Box” in Your Car
Many modern vehicles are equipped with Event Data Recorders (EDRs), which are mandated by federal regulations (49 CFR § 563). These devices function like an airplane’s black box, recording critical data in the seconds just before and during a crash.
This data can include:
- Vehicle speed
- Brake application
- Steering wheel angle
- Seatbelt usage
This information provides an unbiased, second-by-second account of a driver’s actions, which can be invaluable in resolving disputes about what happened.
Telematics and Dash Cams: Real-Time Monitoring
Usage-based insurance programs that offer discounts for safe driving often use telematics devices or smartphone apps to track habits like speeding and hard braking. In some cases, this data could be used in a claim investigation. More directly, footage from a dash cam—either in your vehicle or from a witness’s car—can provide indisputable visual evidence of how an accident unfolded.
Digital Footprints: Social Media
It is also worth noting that adjusters may review your public social media profiles. If you claim a severe leg injury but then post photos of yourself on a long hike a week later, that content could be used to question the severity of your injuries and the validity of your claim. It is wise to be cautious about what you post online while your claim is active.
Can Insurance Companies Legally Follow You?
Yes, and they do. If your claim involves serious injuries or high-dollar damages, the insurance company may hire a private investigator to watch you.
This usually happens quietly. You won’t know it’s happening until it’s already done. Investigators may park near your home, follow you to the store, or film you walking to your car. Their job is to collect video or photos that suggest your injuries aren’t as limiting as your claim says.
It’s legal in Florida, as long as they’re filming you in public. And the footage they collect can end up in your claim file.
What Are They Hoping to Catch?
They’re not looking for smoking-gun evidence. All they need is a moment that casts doubt.
Examples of footage they might use:
- Carrying grocery bags without a limp
- Bending to pick up your child
- Laughing at an outdoor event
- Walking your dog without a brace or cane
Even a few seconds out of context can be used to say, “this person doesn’t look hurt.” You know what the clip leaves out—how long you rested after, the pain flare-up that night—but the insurance company isn’t showing that part. They’re building a case that you’re exaggerating.
How This Affects Fault and Compensation
In Florida, modified comparative negligence means your compensation drops if you’re found even slightly at fault. And if you’re assigned more than 50%, you get nothing.
Surveillance footage doesn’t directly prove who caused the crash, but it chips away at your credibility. If they argue that you weren’t as badly hurt as you claim—or that your own actions led to your injuries—it may shift the fault percentage enough to cut your payout.
This is especially common in cases where medical records show soft-tissue injuries like whiplash, which don’t appear on scans.
What You Can Do
You don’t have to hide inside, but you should be mindful.
Here’s how to protect your case:
- Stick to your doctor’s instructions. If you’re told not to lift heavy things, don’t.
- Tell your lawyer if you notice someone following you. We’ve seen it before, and we’ll document it and respond.
- Be careful on social media. A single photo can raise questions.
- Don’t exaggerate symptoms. Be honest with your doctor and your team. We can work with the truth.
If surveillance footage is used against you, it’s not the end of the road. We’ve handled cases where the footage didn’t match the medical timeline, where it left out context, or where it outright misrepresented the facts. We’ll make sure it’s seen for what it is and what it isn’t.
What Can You Do if You Disagree with the Fault Decision?
An insurer’s determination of fault is not the final word. You have the right to challenge a decision that you believe is unfair or incorrect.
First, formally dispute the decision with the insurer. You can begin by writing a letter to the adjuster that clearly outlines why you disagree with their findings. It is important to provide any additional evidence you have that they may not have considered, such as a statement from a witness they didn’t contact or photos they haven’t seen.
Next, you can file a complaint with the Florida Department of Financial Services. This state agency oversees the insurance industry and can help mediate disputes between consumers and insurance companies. They can review your case and ensure the insurer has acted in accordance with state regulations.
Finally, you may need to file a lawsuit. If the insurance company refuses to negotiate or offer a fair settlement, taking the case to court may be the only way to pursue the compensation you are entitled to. In court, the insurer’s decision is not binding. A judge or jury will hear all the evidence and make their own determination of fault based on a preponderance of the evidence standard, which means showing your claim is more likely to be true than not. Our firm handles these negotiations and, if necessary, the litigation process.
Frequently Asked Questions About Fault Determination
How long does it take for an insurance company to determine fault in Florida?
The timeline can vary significantly. For simple, clear-cut cases, it might take only a few weeks. For more complex accidents involving severe injuries, conflicting witness statements, or a lack of clear evidence, the investigation could extend for several months.
What if the other driver lies about what happened?
Unfortunately, this is common. The key to countering a false narrative is to present stronger, more credible evidence. This is where a detailed police report, clear photos from the scene, independent witness testimony, and objective data from an EDR become invaluable tools.
Can I be found at fault if I was rear-ended?
In Florida, there is a legal presumption that the rear driver is at fault in a rear-end collision. However, this presumption can be challenged. If the front driver, for example, stopped suddenly and without reason, had broken brake lights, or cut you off, some percentage of fault might be assigned to them.
Do I need a lawyer to dispute a fault decision?
While you can dispute a fault decision on your own, having an experienced attorney can make a significant difference. We understand the types of evidence that insurers find most compelling and know how to build and present your case in the most effective way possible to counter an unfair fault determination.
Let Us Make Your Case Clear
At Steven A. Bagen & Associates, P.A., our practice focuses on car accident cases. We handle the investigation, the evidence gathering, and all communication with the insurance companies so you can focus on your recovery.
If an insurance company is trying to place unfair blame on you, or if you simply have questions about your rights, call us for a free consultation at (800) 800-2575.