H. Kyle Fletcher
Insurance Claims in Personal Injury Cases
When you are involved in an accident, whether it’s an auto accident or a slip-and-fall, you need to be aware of the following:
Firstly, NO Insurance Company is your friend.
Secondly, DO NOT speak to Insurance Company until you consult a lawyer.
Why? Insurance companies need to determine who is at fault in the accident. This will effect who is awarded damages and how much payment each party receives. Under common law, there are different kinds of fault. The two most commonly applied to auto accidents are negligence, which is careless or inadvertently harmful behavior, and recklessness, which involves a deliberate disregard for the safety of other people. Failing to observe the proper procedure at a four-way stop would be a case of negligence, while drunk driving would constitute reckless behavior.
Before I move on, you need to understand an important legal term, and by the way, if you will checkout the Legal Information section of our website, you will find a glossary to help you with other legal terms that may be confusing. Now moving on to the legal term, Tort. If you cause an accident, you have committed a tort, which is a private wrong committed outside of a contract. Someone who commits a tort is called a tortfeasor. This term is commonly used in insurance policies.
Insurance claims adjusters look at four factors in order to determine fault: duties, breach, causation, and damages. All four of these elements need to be in place in order for the company to assert that a party is at fault.
First, every driver has certain duties while on the road. These duties are usually described as “look-out”, avoidance, and following the rules of the road. “Look-out “means you need to be aware of your surroundings at all times. It is your duty to see what is happening on the road and in your environment. For this reason, never tell an adjuster or police officer that you “didn’t see the other car” or “it came out of nowhere.” This is enough to establish that you are at least partially at fault, as you did not uphold your duty to be aware of your surroundings.
Avoidance means that you have to do your best to avoid the accident. This does not mean you have to actually avoid the accident; it just means you have to demonstrate you tried. For example, if a car runs a red light, as you are entering an intersection, and you don’t brake or swerve to avoid hitting that car, then you are partially at fault; even though the other driver broke the law. The third duty, following the rules of the road, is fairly straightforward.
In order to determine fault, insurance companies must determine you did did follow one at least one of these duties. This is known as a breach. They also need to show causation, i.e. that there is a connection between the duty breached and the damages caused. All damages, either property damages or injuries, must be related to the duty breach that you caused. For example, say your car is parked with the engine running, but you are not wearing your seatbelt; another car hits you, and you are injured in the collision. On the one hand, you were breaking the law by not wearing your seatbelt. However, this breach did not cause the accident, i.e. wearing your seatbelt would in no way have prevented this accident. Therefore, you are not liable for damages to either car. However, if failure to wear the seatbelt exacerbated your injuries, your claims for damages could be reduced.
There are two kinds of accidents where fault is pretty straightforward. The first is a rear end accident. In this instance, the driver behind you is always at fault, as he or she has a clear duty to maintain a safe following distance. Even if you stop suddenly, the other driver should have enough space to stop safely. If that driver has been pushed into you by another car, he could claim damages from the car that hit him. However, he is still liable for the damages to your car. If you have done something wrong, such as driving without working brake lights, your damages award could be reduced.
The second type of fault that is pretty straightforward is a left turn accident. In this scenario, the driver turning left is at fault, as the driver going straight has the right of way. There are a few exceptions, of course, such as if the other driver is speeding or runs a red light.
In most other types of accidents, there will most likely be some degree of fault on both sides. In these cases, the way that fault is handled varies from state to state. Four different kinds of laws are in place that govern the degree of fault and how it relates to your case.
In states with Contributory Negligence laws, if either party is at all at fault then they cannot claim damages. Even if you are only slightly at fault for an accident, you will not be able to claim any damages. Only a few states follow this law: Alabama, District of Columbia, Maryland, North Carolina and Virginia.
Another, more common kind of law, is Pure Comparative Fault. Under this law, your damage award is reduced by your percentage of fault. If you are 10% at fault, then your award will be reduced by 10%. New York, Rhode Island, Kentucky, Mississippi, Louisiana, Florida, California, Missouri, New Mexico, Arizona, South Dakota, Washington, and Alaska use this law.
Other states use Proportional Comparative Fault. This means that if you are above a certain percentage of At-Fault, you will not be able to claim damages. Some states set the bar at 51%, so if you are found to be 51% or more at fault, you cannot claim damages. These states include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming. Other states set the bar at 50%, so if you are 50% or more responsible, you cannot claim for damages. States using this law are: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia.
Once fault is determined, the next step is to assess the total cost of all damages. For this reason, it is important that you keep records of any expenses related to the accident. This is also why it is essential that you receive a medical check-up shortly after the accident, even if you do not think you are seriously injured. If a more serious problem does manifest itself in the weeks after the accident, it can be become increasingly difficult to prove that this problem was directly caused by the accident. Damages in the form of lost wages and loss of future earnings are also taken into account, as are general damages, such as pain and suffering or reduced quality of life, although these can be more complicated.