Who's At Fault in an Auto Accident?

First, let's begin with some general information about the Fault Determination Rules in Ontario.

How does an at-fault accident affect me?

The degree to which you are at-fault affects the amount you will receive from your insurer to repair your vehicle. For example, if you are 50% not at fault, 50% of the repair cost would be paid under your Direct Compensation Property Damage coverage (less 50% of your deductible, if any). You must have collision coverage to claim the other 50% of the repair cost (less 50% of your deductible).

Generally, insurance companies will increase your premiums, at your next renewal date, if you have been deemed to be fully or partially at fault in an accident.

Who determines fault after an accident?

After a car accident, it is often not clear who was at fault. However, insurance companies must determine the degree of fault to be assigned to each driver for purposes of determining which coverage applies to the accident, and to ensure that the at-fault vehicle's premiums are adjusted appropriately.

How does my insurance company assess fault?

After you report an accident to your insurer, the company will investigate the circumstances of the accident and then make a liability decision based on the Fault Determination Rules. The Fault Determination Rules were established by the government to help insurance companies provide consumers with prompt, cost effective claims handling and consistent treatment. The Fault Determination Rules are a regulation made under the Insurance Act and cover more than 40 accident situations, using diagrams to illustrate specific occurrences.

Certain charges arising out of an accident, such as driving 16 km over the speed limit, or driving while impaired, require insurers to assess the accident in accordance with the ordinary rules of law. (The ordinary rules of law is a term used in the Insurance Act that refers to the law that would apply in the absence of the Fault Determination Rules, such as common law, the Highway Traffic Act, the Criminal Code, etc.)

How do Highway Traffic Act charges or convictions affect the insurance company's decision?

According to the regulation, the Fault Determination Rules must be applied without regard to such things as road or weather conditions; visibility or the point of impact on the vehicles. As well, determinations on fault are made independently of decisions made by police officers to charge a driver. A charge under the Highway Traffic Act does not necessarily mean that the person charged was "at fault" for insurance purposes. In the same way, a lack of charges does not mean that no one was at fault.

For example, if a car was unable to stop on an icy road and rear-ended another, a police officer may have told the parties that "no one was at fault". This comment relates to the laying of charges and should not be taken as an opinion with respect to the Fault Determination Rules for purposes of dealing with an auto insurance claim. In this case, the insurer would apply the Fault Determination Rule which indicates that a car that rear-ends another is at fault.

What can I do if I disagree with my insurance company's assessment of fault?

You may be dissatisfied with an insurer's decision on liability and believe that the decision does not accurately reflect the circumstances of the accident. In such cases, you have the right to challenge the insurer's decision in court. If the matter comes before a court, it will be decided based on the ordinary rules of law and not the Fault Determination Rules. Usually, these matters can be dealt with in small claims court.

Before deciding whether or not to pursue the matter in court, you should speak to your insurance representative, and find out how your rates will be affected by an at-fault accident.

Under what circumstances will insurance companies reconsider or revise their determination of fault?

Generally, an insurance company will revise or reconsider its decision on fault, only if additional, relevant information is provided. For example, if an accident occurred in which each driver stated that the other driver had gone through a red light, an insurance company would have little choice but to assign 50/50 fault. However, if an eyewitness confirmed which driver went through the red light, an insurance company could review its decision. Any new information should be brought to the attention of the insurance company. If you have independent evidence which your company refuses to review, then you should proceed through the company's complaint handling protocol.

Occasionally, after investigating an accident, an insurer may realize that the Fault Determination Rules may be contrary to the ordinary rules of law. In an effort to be fair in that particular case, an insurer may apply the law and not the Fault Determination Rules, rather than putting its customer to the time and expense of a trial.

Can the Office of the Insurance Ombudsman look into complaints about the assessment of fault?

The Office of the Insurance Ombudsman at the Financial Services Commission of Ontario cannot determine fault in a motor vehicle accident. If you are unclear, you should ask your insurance company to explain which rule has been applied in your particular case. If you continue to disagree, you may need to take the matter to court.

For more information

The Law Society of Upper Canada offers legal information on taking matters to court. See their website at http://www.lsuc.on.ca .

Section 263 (4) of the Insurance Act sets out your right as an insured person, to bring an action against an insurer if you are not satisfied that the insurer's decision on fault reflects the actual degree of fault, or if you are not satisfied with the proposed settlement.??Copies of the Insurance Act and its regulations, including the Fault Determination Rules, are available at public libraries or from