Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) This
section sets forth the procedures an insurer shall follow to determine whether an
insured driver or a driver listed on an insurance application (hereinafter referred
to as "driver") may be considered to be principally at-fault for an accident for the
purpose of:
(1) Determining the driver's driving
safety record (First Mandatory Factor) pursuant to section
2632.5, and
(2) Determining the driver's eligibility for the
Good Driver Discount policy pursuant to Insurance Code Section
1861.025 and
Section 2632.13.1.
(b) An insurer shall not make a determination that
a driver is principally at-fault for an accident unless the driver's actions or
omissions were at least 51 percent of the legal cause of the accident, subject to
the presumptions set forth in Subsections (c) and (d) and either the accident
resulted in bodily injury or death or, for an accident that resulted only in damage
to property, the total loss or damage caused by the accident exceeded $1000. No
determination made in accordance with the prior version of this regulation is
affected by the 2011 amendment to this regulation.
(c) It shall be rebuttably presumed as provided in
Evidence Code Section
603 that a driver
is not principally at-fault for an accident under any of the following
circumstances:
(1) The vehicle was lawfully parked
at the time of the accident. A vehicle rolling from a parked position shall not be
considered to be lawfully parked, but shall be considered as in the operation of the
last operator;
(2) The vehicle was
struck in the rear by another vehicle and the driver has not been convicted of a
moving traffic violation in connection with the accident;
(3) The driver was not convicted of a moving
traffic violation and the operator of another vehicle involved in the accident was
convicted of a moving traffic violation;
(4) The driver's vehicle was damaged as a result
of contact with a vehicle operated by a "hit and run" operator of another vehicle
and the accident was reported to legal authorities within a reasonable time after
the accident;
(5) The accident resulted
from contact with animals, birds, or falling objects;
(6) The accident was a solo vehicle accident that
was principally caused by a hazardous condition of which a driver, in the exercise
of reasonable care, would not have noticed (for example, "black ice") or in the
exercise of reasonable care could not have avoided (for example, avoiding a child
running into the street).
(d)
It shall be conclusively presumed that a driver is not principally at-fault for an
accident if the provisions of Insurance Code Section
488.5
apply.
(e) An insurer providing
insurance coverage at the time of an accident shall not make a determination that a
driver was principally at-fault for an accident unless the insurer first conducts an
investigation. In conducting an investigation and determining whether the driver is
principally at-fault for an accident, the insurer shall diligently pursue a
thorough, fair and objective investigation and shall maintain records detailing the
investigation.
(1) The insurer shall provide
written notice to the insured of the result of such investigation, including any
determination that the driver was principally at-fault. The notice shall specify the
basis of any determination that a driver was principally at-fault, including the
basis of any determination that the accident resulted in bodily injury or death. The
notice shall advise the insured of the right to reconsideration of the determination
of fault, as set forth in Subsection (e)(2);
(2) Within 30 days of receipt by the insured of a
written notice required by Subsection (e)(1), the insured may request
reconsideration of the insurer's determination that the driver was principally
at-fault. Within 30 days of receipt of the insured's request for reconsideration,
the insurer shall provide the insured with a written decision, stating the reasons
for its decision upon reconsideration. The reconsideration shall be made by an
employee or agent of the insurer other than the employee or agent who made the
determination being reconsidered. The right to reconsideration set forth herein
shall not affect any other rights of the insured.
(3) An insurer shall not report to a subscribing
loss underwriting exchange carrier that a driver is principally at-fault for an
accident unless it has complied with subsections (b) and (e) in making its
determination.
If after reporting a principally at-fault determination to a
subscribing loss underwriting exchange carrier an insurer modifies its principally
at-fault determination, it shall within twenty days report any such modification to
the subscribing loss underwriting exchange carrier.
(f) An insurer who did not provide coverage at the
time of the accident (hereinafter referred to as a "subsequent insurer") shall not
consider a driver to be principally at-fault for the accident unless:
(1) The subsequent insurer contacts any insurer
who provided coverage at the time of the accident and confirms its principally
at-fault determination as defined in subsection (b); or,
(2) The subsequent insurer obtains and relies on
subscribing loss underwriting exchange carrier data that:
(A) For an accident under a policy governed by the
laws of the State of California, includes all of the following information:
1. The policyholder's address,
2. Identification of the driver,
3. A principally at-fault determination that
establishes that the driver was at least 51 percent at-fault for the accident and
that the presumptions under subsection (c) and (d), above, were
considered,
4. For an accident that
resulted only in damage to property, the total loss or damage caused by the
accident, or
5. If applicable,
information establishing that the accident resulted in bodily injury or
death;
(B) For an accident
under a policy governed by the laws of another state, includes all of the following
information:
1. The policyholder's
address,
2. Identification of the
driver
3. A determination of fault for
the accident made according to the laws of the state governing the
accident,
4. For an accident that
resulted only in damage to property, a property damage claims payment, or
5. If applicable, a bodily injury claims payment;
or,
(3) The driver
confirms and the subsequent insurer records facts sufficient to find that the driver
was principally at-fault for the accident as defined in subsection (b); or
(4) The subsequent insurer obtains sufficient
information to determine that the driver is principally at-fault for the accident as
provided in subsection (b); or
(5) The
subsequent insurer obtains the driver's declaration, under penalty of perjury,
attesting to his or her own principally at-fault accident history as provided under
subsection (b), which shall be sufficient proof of that accident history in the
absence of contrary information from an independent source.
(A) Nothing in subdivision (f)(5) shall prevent a
subsequent insurer from asking follow-up questions about the information contained
in the declaration, and nothing in this subdivision shall authorize a driver to
refuse to answer a reasonable follow-up question.
(B) If a subsequent insurer discovers that the
declaration contains a fraudulent or material misrepresentation, the insurer may
cancel the policy pursuant to California Insurance Code sections
661 and
1861.03(c)(1)
and take any other action authorized by law.
(C) If an insurer discovers contrary information
from an independent source disputing the driver's declaration, the insurer shall
determine whether the driver is principally at-fault for the accident as provided in
subsections (f)(1) through (f)(4), above.
(g) Any insurer may use facts available from the
public record of traffic violation convictions available from the California
Department of Motor Vehicles and similar public records of traffic violation
convictions available from other jurisdictions (hereinafter referred to as the
"motor vehicle report" or "MVR") to support a determination that a driver is
principally at-fault for an accident; provided that:
(1) An insurer may not rely on a traffic violation
point count pursuant to California Vehicle Code Section
12810(g)
or on any finding of responsibility for an accident by a public agency that may be
found in a driver's MVR, and
(2) In
order to rely solely on a driver's MVR to support a principally at-fault
determination, the MVR must contain all information required for such a finding as
provided in subsection (b).
(h) Any subsequent insurer may use data available
from a subscribing loss underwriting exchange carrier to support a determination
that a driver is principally at-fault for an accident. However, except as otherwise
permitted in subsection (f)(2), an insurer may not rely solely on subscribing loss
underwriting exchange data to support a principally at-fault determination. Whenever
an insurer relies on any data obtained from a subscribing loss underwriting exchange
carrier to determine that a driver is principally at-fault for an accident, it shall
inform the driver or applicant of the source of the information upon which it relies
and provide contact information for the source.
(i) An insurer that has made a determination that
its insured was principally at-fault for an accident shall not refuse to disclose
that determination to any person involved in that accident, to any person legally
responsible for damages resulting from that accident, or to an insurer or
prospective insurer of any such person. The requirement for disclosure shall pertain
only to the ultimate determination of its insured's fault and the resulting bodily
injury or death or the total amount of property damage, and disclosure shall not be
required of any other information in its possession or any determination of fault of
any person other than the insured.
(j)
If a driver fails or refuses to respond to an insurer's reasonable request for
information that is material to its principally at-fault determination and the
insurer has complied with the requirements of Section
2632.19(b)(1), the
insurer may cancel the policy as authorized by Insurance Code Section
1861.03(c)(1).
1. New section
filed 3-16-2011; operative 12-11-2011, at which time the previous version of section
2632.13 is inoperative (Register 2011, No. 11).
Note: Authority cited: Sections
791.10,
1861.02,
1861.025,
12921 and
12926, Insurance
Code; and Calfarm Insurance Company v. Deukmejian 48 Cal.3d 805 (1989). Reference:
Sections
488.5,
1861.02 and
1861.025,
Insurance Code; and Section
12810, Vehicle
Code.
