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§ 2632.13. Determination of “Principally At-Fault” Accidents. [Effective 12-11-2011]

10 CA ADC § 2632.13BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

Barclays Official California Code of Regulations Currentness
Title 10. Investment
Chapter 5. Insurance Commissioner
Subchapter 4.7. Private Passenger Automobile Rating Factors
Article 4. Good Driver Discount Policy
10 CCR § 2632.13
§ 2632.13. Determination of “Principally At-Fault” Accidents. [Effective 12-11-2011]
(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).
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.
HISTORY
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).
This database is current through 5/6/22 Register 2022, No. 18
10 CCR § 2632.13, 10 CA ADC § 2632.13
End of Document