This article is a companion piece to this video
What do you do when the at-fault party in a car accident claims it was not them but something wrong with the car that caused the incident? Prove that it is still their responsibility. In this episode of On Subrogation: Negligent Maintenance, insurance attorney Jason Sullivan explains how to apply negligent maintenance in auto subrogation lawsuits to support liability arguments against the opposing driver.
Negligent Maintenance: No Insurance, No Maintenance, Huge Liabilities
Jason explains that negligent maintenance is most often encountered in uninsured motorist subrogation because (1) they do not have insurance to cover their negligence that caused the damage and (2) they are often unaware that they can be held liable for failing to properly maintain their vehicle.
(Learn more about subrogating against uninsured and underinsured motorists with our article: Limits vs Excess: Strategies for Successfully Subrogating an Underinsured Tortfeasor)
Upon a car accident, an uninsured motorist is likely to claim that it was not operator error that caused the accident; it was the car. As such, it was out of their control and they should not be held responsible for the damages. But it is not that cut and dry, as the owner of a vehicle does, in fact, largely have control over the state/function of their car.
A savvy subrogation attorney can beat this no-fault argument with the right strategy, but the key is to be prepared for it by the time the subrogated matter gets to court.
Anticipating the Tortfeasor’s Attempts to Blame the Automotive
Jason offers advice on how to get ahead of a tortfeasor’s attempts to blame the car for the incident that caused the loss:
Does the tortfeasor say something on the police report that appears to shift blame from the operation of the vehicle? Chances are they intend to continue this line of “it was the car, not me” verbiage, and it is your job as subrogating counsel to prove that they were still responsible. Look to negligent maintenance as the cause of action.
If there is no statement or explanation in the police report, listen to what the tortfeasor says when you talk to them. If they shift blame to mechanics, such as claiming the brakes failed or the tires slipped, pin them down and get all facts to argue why they are responsible for those failed breaks or bald tires.
Combating the Tortfeasor’s Claims They Had No Control of the Car
If you are aware someone is trying to/will try to shift blame to mechanical or maintenance problems as the main cause of the accident, the requests you make in discovery are key to arguing that there was, in fact, fault on the part of the tortfeasor behind that malfunctioning part. Make sure to issue discovery for:
Maintenance History
Has the vehicle regularly been taken care of? This would include professional oil changes, tire tread checks, inspections, etc.
Maintenance Records
When was the problem first discovered? Many issues with cars do not happen all at once. Let’s look at two common claims in UIM subrogation:
Bald Tires
- A tortfeasor will claim the tired slipped and there was nothing they could do. A look at the tires shows they’re bald. That does not just happen; tires take several thousand miles to wear down.
- If the car had been regularly maintained, the driver would know this was an issue. And if it had not, any reasonable driver should know regardless because their tires would have likely had some slips and slides before this, and lack of tread is also easily visible every time you use the car.
Bad Brakes
- Say the issue was that the brakes failed to engage completely or at all, and the tortfeasor points to that as the cause of the accident. How could they have known the brakes would fail at exactly that moment?
- This is another case where brakes do not just break overnight. Any reasonable driver would have experienced a little bit of stickiness, more noise, taking longer to come to a complete stop, and other common symptoms. Most vehicles’ brakes are designed to purposefully make noise as they wear down so the driver is aware that they need to be replaced soon.
(Learn more about motor vehicle subrogation cases where tortfeasors try to pass the blame with our YouTube episode: On Subrogation: No Contact Vehicle Accidents)
Asking the Right Questions Up Front
This is where the negligent maintenance action comes in. You have uncovered an issue that it seems like the driver would almost definitely have to have been aware of before the incident. When speaking to the tortfeasor, be sure to determine:
- How often the vehicle was inspected/maintained
- Who (professional vs at-home) did said work on the vehicle
- What was involved in said work
- Records for claimed inspections/maintenance actually exist
Determining Whether Negligent Maintenance Applies to a Subrogation Claim
Understanding and obtaining all of this information will help you determine the main question in applying negligent maintenance: Was this a known issue that was ignored?
As the subrogating party, you want to walk into court having the defenses already set up when the tortfeasor testifies that the vehicle was the problem in order to avoid responsibility. Yes, the vehicle was the main factor in causing the accident. No, that does not make the other driver exempt from liability, because the car is an extension of themselves and they had control over its condition.
To hold a tortfeasor liable for negligent maintenance, you must establish:
- the tortfeasor knew of issue,
- by continuing to operate the vehicle and/or ignoring the issue they created a danger, and
- that caused the damages in the subrogation claim.
Want to know more about this subject or other relevant topics in subrogation and insurance law? Visit Rathbone Group’s Education page for links to our YouTube channel and podcast library, where you can find our On Subrogation series: our free educational resource for professionals in the subrogation industry. Or visit our blog for companion articles discussing various episodes.For more information on Rathbone Group’s capabilities and services, reach out at [email protected].