Discussing Fault in a Car Accident Demand Letter

How to effectively show that the other driver caused the car accident.

If you are writing a car accident demand letter to an insurance adjuster as part of an injury claim, the most important part of the letter is often where you cover the issue of fault for the car accident -- or at least lay out your side of the story. This is because liability in car accidents is based on negligence. If the defendant is not negligent, he/she did not do anything wrong. So your demand letter must always start with explaining why the other driver was negligent and why and how that carelessness caused the accident and your injuries.

What is Negligence?

In general, negligence means not exercising reasonable care under what lawyers call the "reasonable person" standard. If a reasonable person would have done a certain action (like increased their following distance when driving in fog) then not doing that action would amount to negligence. And on the other side of the coin, if a reasonable person would not have done a certain action (like used their cell phone while driving) then doing that action would be negligent. (Get the basics on Fault for a Car Accident.)

Explaining Causation in a Car Accident Demand Letter

You want to explain how the accident happened -- including addressing negligence and causation (i.e., liability) -- in the demand letter as succinctly and clearly as you can. In most car accident demand letters, you can explain liability in no more than a paragraph or two. If liability is very straightforward, you can address liability in about two sentences. For liability, short and sweet generally does the trick. Let’s look at a couple of examples to see how briefly liability can be explained.

Single Car Accident - Driver Obviously Negligent

Let’s take an example of a passenger who is making a claim against the driver in a one-car accident where the driver was driving too fast, went off the road, and hit a tree. Your statement of liability might say the following:

"This was a one-car accident in which your insured was driving 50 MPH in a 35 MPH zone and lost control of her car. The car went off the road and hit a tree. I was wearing a seat belt, but was injured in the collision. Accordingly, your insured was negligent."

That’s it. Nothing more needs to be said about liability. You explained what happened, and the facts in this type of case pretty much speak for themselves. If you say too much more, you will just be repeating yourself, and the adjuster will lose interest in reading the rest of your demand letter.

Rear End Collision

Liability in a rear-end accident can be explained even more briefly. You might say:

"I was sitting at a red light when your insured rear-ended me, causing me to be injured. Your insured was thus clearly negligent."

Why say anything more? There is almost never any excuse for rear-ending someone. You weren’t moving. You were at a red light. The other driver ran into you. That’s all that you need to say.

Liability More Difficult – Car Backing Out of Driveway

Now let’s look at a more complicated situation. Let’s say that you were backing out of your driveway and were hit by a car coming down the street. Let’s say that the driver of the car coming down the street was on the phone (so he/she was probably negligent), but let’s say also that you were waving goodbye to one of your children and so didn’t look behind you as carefully as you might have. In this situation, you have to talk more about liability, but you still want to keep it shorter rather than longer. You might say the following:

"I began backing down my driveway. I had good visibility in either direction. I waved goodbye to my son, looked both directions before entering the roadway, pulled out of my driveway and got hit. I had seen your insured when he was further down the block, about 150 feet away. I then looked the other direction and got hit almost immediately. The speed limit is only 25 MPH on my block. It is a quiet residential neighborhood. Your insured was definitely going well in excess in 25 MPH when he hit me. He could not possibly have been obeying the speed limit. If he had obeyed the speed limit, he would not have hit me. Additionally, my son saw that your insured had his phone up to his head as he was driving down the block. My son is 11 years old and is certainly capable of making that observation. Your insured was clearly negligent in this case for not paying attention to the road because he was concentrating on his phone and for driving too fast on a small, residential street."

This is the type of case where you might need to add additional facts. If, for example, the police came and made a report that helped you, you would want to mention all of the favorable facts and conclusions from the police report. If the other driver made any admissions of guilt or even of partial guilt after the accident, you certainly want to mention that as well.

This type of case is a close call, so you need to pour on the facts. But you don’t want to repeat yourself. Tell the adjuster everything that happened, but only say it once. And for each fact that supports a claim of negligence, tell the adjuster that the insured was negligent because of that fact (i.e., “Your insured was driving while looking down. He was obviously texting or using his phone. Because he was focused on his phone, not the road, he was negligent.”). But, even in the most complex of cases, you should be able to explain why the defendant is negligent in two paragraphs or less.

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