How to prove that I was not at fault for an accident?

I was rear-ended about a month ago while waiting for a red light on a one lane street. The other driver admitted they were texting, unfortunately I did not have my wallet or license on me and did not want to get a ticket for it so the police were not called. I agreed to provide a my signature to attest that I was in fact driving and I did have my license. I took pictures of both cars. Insurance tells me they are trying to blame me by saying that I backed up into them. Can phone records be looked at by insurance companies to show he was texting?

Asked on January 10, 2013 under Accident Law, California


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

When it's a he said/she said situation-- then any evidence can and will help.  Your insurance company can and should look at the other party's phone records.  If you are going to get them, however, you need to move quickly to preserve them.  Many phone companies only keep text messages for a limited period of time.  (some as little as 90 days) 

The insurance company can also have an accident reconstruction expert look at the extent of the damage caused by the other driver's explanation.  Backing-up going 5-10 miles per hour will cause much less damage than someone traveling into the rear of a vehicle at 20-30 miles per hour.  Make sure that your insurance company is aware of your pictures so that they can review this as an additional defensive theory for you. 

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Based upon what you have written about, the driver of the other car has the burden to establish your fault. You can request copies of the other driver's texting and cell phone calls to ascertain inattention at the time of the mishap. Likewise an accident reconstructionist can come up with an opinion as to causation.

I suggest that you have your claims representative for your insurance carrier keep you advised at the matter's status.

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