It depends on how the insurance companies of each driver sees it. You both could be charged with "undue care and attention", or the person backing out did so in a hurry and hit you, it would be their fault. If they hit you on the side any part of your car such as a back fender (meaning you were well out of your stall and they just backed into you) it's their fault.
Marcy
In many state jurisdictions, such as Georgia, police are required on the scene. Although, many time an incident such as this occurs on private property and a police officer is unable to issue a citation. However, they can issue a police report of the incident. many times this is used by insurance companies to establish fault. If fault cannot be established then each insurer would default to their own coverage.
Mark Link, PC
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