Getting into a car accident is stressful enough all on its own. Then the insurance adjuster for the other driver calls. At first they come across super friendly, but somewhere in that first conversation, they start asking some pretty pointed questions about what you were up to right before the collision. That’s not just a courtesy call; that’s where they start trying to build a case for the other side. If you’ve been hurt in a crash out in the Chicago suburbs, a Cook County car accident attorney will be able to help you face what’s next. Read on for this helpful guide from the Chicago car accident attorneys at Lerner and Rowe.
Illinois Comparative Fault Law: What Makes All the Difference
Illinois goes with a doctrine called modified comparative fault. You can find the statute spelled out in Illinois comparative fault law 735 ILCS 5/2-1116, which is pretty basic once you break it down.
Here’s how it works:
- If you are at fault for 50% or less, you still have a shot and can bring a personal injury claim. But your damages are going to be reduced by the amount of fault you’re assigned, so you’re still going to get something.
- If you are at fault for 51% or more, you may not be eligible to make a claim. It could get thrown out immediately.
That single percentage point—the difference between 50% and 51%—is the real key number in your case, the thing that insurance adjusters are getting paid to push you over.
Where These Crashes Happen and Just How Complicated Fault Can Get
The areas west of Chicago are a hotspot for crashes thanks to heavy commuter traffic, aging road infrastructure, and abundant commercial highways.
I-88 Interchange Accidents Around Naperville and Aurora
The Illinois Route 88 (East-West Tollway) corridor between Aurora and I-290 is one of the most litigated areas for car wrecks in the whole region.
Interchange Crashes: A Recipe For Dispute
Crashes at interchanges are the perfect storm of factors coming together all at once:
- Merging traffic between tollway and ramp traffic
- Speed differentials as drivers try to change lanes
- Drivers getting distracted by toll transponders or last-minute changes to their GPS
The I-88 / IL-59 interchange near Naperville is particularly notorious. IDOT has had to try and fix the interchange geometry more than once because crashes continue to be a serious problem there.
The same patterns keep popping up at the I-88 / Farnsworth Avenue interchange in Aurora and the I-88 / I-355 split in Lisle. Each one has its own unique quirks that adjusters have learned to take advantage of.
IL-83 Intersection Crashes Across DuPage County
Illinois Route 83 carves its way through Elmhurst, Villa Park, Lombard, and Willowbrook—and in doing so, it has to cross dozens of intersections and strip mall driveways along the way.
Left turn accidents at IL-83 intersections are some of the most contentious crash types a Naperville car accident lawyer will see. The law usually says that the turning driver is supposed to yield, but adjusters will try to poke holes in that rule by asking if the oncoming driver was speeding, if they had a protected left turn signal, or if the intersection itself was ambiguous. Any of these sticking points is a chance for an adjuster to spin up a narrative that puts the burden back on the injured party.
Route 59, Ogden Avenue, and Naperville’s Main Commercial Corridors
US Route 34 (Ogden Avenue) runs through the heart of Naperville and Aurora – and it’s one of the busiest surface roads in all of DuPage County.
It’s lined with big box stores, drive-thrus, and office parks that all create a perfect storm of driveway conflict. And rear end crashes near parking lot approaches are always undervalued by the insurance company, not because they’re not serious, but because they just don’t want to pay out.
Route 59 through Naperville just makes the problem even worse. Speed limits keep shifting on that road, and the signals at intersections are designed more to reward aggressive driving than to keep you safe.
Car Accident Lawyer in DuPage County, IL: 5 Adjuster Tactics
Insurance adjusters aren’t there to be neutral fact finders—they’re in the business of closing claims, and that means keeping payouts to a minimum.
When you know what tricks they’re using to inflate fault, their questions stop feeling like a genuine search for the truth and start feeling like a tactic to reduce the amount you’ll receive.
1. The Pre-Impact Speed Argument
This is hands down the most common tactic: if you were speeding at the moment of impact, you were technically breaking the law.
And if you were breaking the law, then you were partially responsible—regardless of what the other driver did or didn’t do. Even 3-5 mph over the limit can be enough to get you assigned 10-15% fault—and that can often be enough to push the final tally past 50% if they add in a few other supposed faults.
2. Phone Record Fishing
When insurance adjusters start snooping through your cell phone records, they’re on the hunt for any activity at all—calls, texts, app usage—in the minutes leading up to the collision. A notification you got two minutes before the crash can be twisted into a distraction. Even something as harmless as using a mounted GPS app while driving can be spun into a case of inattention.
This is precisely why recorded statements are so perilous. What you say in that first phone call–sometimes while you’re still in a daze from the crash–can come back to haunt you at every stage of the negotiation process.
3. The “Failure to Avoid” Theory
Illinois courts figure that drivers have a responsibility to exercise a reasonable amount of care when a collision is about to happen. Adjusters love to stretch this rule into a blanket excuse: a reasonably careful driver would’ve seen this coming and gotten out of the way.
A top-notch DuPage County personal injury lawyer with access to accident reconstruction resources can counter this argument effectively, but only if you spot it early enough and challenge it before the fault percentage is locked in.
4. The Seat Belt Defense
Illinois has a “seat belt defense,” which means that in certain situations, the other side can argue that your failure to wear a seat belt caused or made your injuries worse and that this should increase your share of the blame.
Now, this doesn’t automatically mean you’ll lose your case. But if combined with speed and distraction arguments, the seat belt defense can send your fault percentage from 20% to 40%, without changing the basic story of the crash at all.
5. Pre-Existing Vehicle Damage
If your car had any damage before, even if it had nothing to do with this accident, adjusters may try to argue that the crash didn’t actually cause what you’re claiming.
Their goal is to muddy the waters enough that the jury starts to wonder if the other driver is really to blame. And if they can get both fault arguments and causation issues mixed up, you’ll be facing an even steeper hill to climb.
Frequently Asked Questions
Q: How does Illinois’ modified comparative fault play out under 735 ILCS 5/2-1116?
Here’s how it works: modified comparative fault means you can still get damages as long as you’re 50% or less to blame for the crash. But your award will be cut by your share of the blame. If you’re 51% or more to blame, you get nothing. That one percent difference is what makes all the difference in most Illinois fault disputes.
Q: Can I still get compensation even if I was partly at fault?
Yes – up to 50% fault, and you’re still good. Just be aware that your award will be proportionally reduced. If you were 20% at fault and your damages total $100,000, you’d get $80,000. It doesn’t mean you have to be completely blameless.
Q: What kinds of adjuster tactics are most likely to push up my fault percentage?
The ones to watch out for are pre-impact speed arguments, phone record distraction claims, failure-to-avoid theory, seat belt defense, and pre-existing vehicle damage. Each one is designed to get your fault percentage over 50%.
Q: How is fault divided in a multi-car crash?
Each driver’s fault is determined individually. Your recovery is reduced only by your own share—not by what other drivers contributed. You can pursue proportional recovery from all at-fault parties at the same time.
Q: Do I need an Aurora car accident attorney for a fault dispute in DuPage or Cook County?
If the insurer is pushing back on fault in any meaningful way—yes. A car accident lawyer in DuPage County, IL, can challenge inflated fault arguments before they get set in negotiations. The difference between 30% and 51% fault is the difference between a real recovery and nothing.
Talk to a Car Accident Lawyer in DuPage County, IL
Whether you were rear-ended on I-88 near Naperville, hit at an IL-83 intersection in Elmhurst, clipped on Ogden Avenue in Aurora, or caught in a chain-reaction pileup on the tollway—our team knows this terrain, legally and geographically. The fault argument is winnable.
But it takes someone who knows what evidence to gather, which adjuster tactics to push back on, and how to build your case before the other side finishes building theirs. The sooner our Chicago personal injury lawyers are involved, the more options you have.
Give us a call at (708) 222-2222, fill out our contact form, or use LiveChat now for a free, no-obligation case review. There’s no fee unless we win.
The information on this blog is for general information purposes only. Nothing herein should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.