Can sole liability be placed on a driver when the other driver caused the accident?

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Can sole liability be placed on a driver when the other driver caused the accident?

My daughter was run off the road,
causing her to hit a pole. There is a
police report, and 3 witness. The other
driver also returned to the scene and
said, ‘sorry, my bad’ and provided her
info. Both insurance companies are
putting full liability on my daughter.
Supposedly due to the fact we live in
Texas, and the cars did not make
contact.

Asked on December 30, 2016 under Accident Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

The insurance companies' determination is not an official legal determination: it just goes to how they are apportioning fault and the payment arrangements they are making. Unless and until there is a court determination as to fault, it is a just a matter of what the insurers propose to do. If your daughter (or you, if she is a minor) do not like the proposed payment arrangments (e.g., that she is not being offered anything for the damage to her car), she has the right to sue the other driver (you sue the driver, not the insurer) for the cost to repair her car and any other costs or losses she incurred. 
Do bear in mind that if there was no contact, it is certainly possible that a court would conclude that your daughter was at fault--e.g. that she could have stopped, or swerved, or pulled back, etc. without going off the road. It is not definite that she'd lose, since the facts could show that she had no alterantive but to go off road, of course; but it is also not certain she'd win, because even if the other driver was himself being careless or reckless, if your daughter should have been able to avoid him without hitting a pole, then hitting the pole could be her fault.


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