Car crashes are confusing. Even if you think you’ve done everything right, you can still be found at fault for what you say and do after the crash. That doesn’t just mean higher premiums going forward; it often means you’re left without a way to cover your repair costs and medical bills.
This is largely because of a system called comparative negligence which generally makes it more difficult to earn a fair recovery, even if you didn’t cause the crash. But what is comparative negligence and what does it mean for your next car crash? Allow us to explain.
What Is Comparative Negligence?
About 1-in-4 American states use a system of comparative negligence to settle car crash cases. This means that in a “typical” car crash where two vehicles are involved, each driver is assigned a percentage of the fault. The total amount of fault assigned in a crash should add up to 100%.
Whoever is assigned more than 50% of the fault is considered responsible for causing the crash. That person cannot recover any insurance coverage for their damages and medical bills, which is why it’s so important to make sure you are aware of the kind of comparative negligence in your state and also ways that fault can be reassigned after the crash.
Pure Contributory Negligence
Some states, like Kentucky, use a system called “Pure Contributory Negligence.” This is the most punishing kind of comparative negligence because both parties could be left without any way to recover damages. In a pure contributory negligence system, if either driver holds even 1% of the fault, they cannot pursue damages. The problem, of course, is that fault is assigned subjectively, and insurance adjusters look for any way to assign even 1% of the fault because it means they don’t have to provide compensation.
Modified Comparative Negligence
Other states, like Texas and Wisconsin, use a system called “Modified Comparative Negligence.” This still makes it difficult to recover damages, even when a driver isn’t at fault, but it is not as punishing as pure contributory negligence.
The “modified” means that after the fault has been assigned, the driver who is not “at fault” has their insurance settlement reduced in proportion to their assigned fault. Let’s look at an example to illustrate.
Jason and Diamond are in a car crash. Jason had pulled into oncoming traffic while Diamond was switching lanes. Jason is assigned 70% of the fault and Diamond is assigned 30% of the fault. What happens next?
Because Jason holds more than 50% of the fault, he cannot recover damages. He will have to pay for vehicle repairs out of pocket and rely on his health insurance to cover his medical bills.
Diamond’s damages are appraised at $100,000, but she is found 30% at fault. Her settlement is reduced by 30% (the amount of fault), and she only receives $70,000, which is less than she needs to cover her damages.
How Is Fault Assigned?
Fault assignment is subjective. There’s no exact science that determines whether someone is 30% responsible or 27% responsible. It’s up to the individual insurance adjuster and they have an incentive to put your fault as high as is reasonable because it means a smaller settlement.
That’s why it’s crucial that you hire an attorney to negotiate on your behalf. An attorney can help demonstrate the facts of the case so that you have a better chance of being assigned less of the fault and get the full damages you need to recover.
Just as important is recognizing that fault is flexible and can dramatically shift as the case unfolds. That’s why every driver needs to know how to protect themselves from fault reassignment, so they have a better chance at earning a fair recovery.
How is Fault Reassigned?
Insurance companies have a playbook of tactics they use to trigger fault reassignment. If you’re not prepared for these, you can be caught off guard and jeopardize your recovery. While you should always consult your attorney about ways to avoid fault reassignment for your case, here are some of the most common tactics we see.
If you call the insurance company and hear that the call is being recorded or you are directly asked to provide a statement “for the record,” be extremely cautious. A recorded statement is one of the most effective strategies the insurance companies use to shift assigned fault.
Not only do insurance adjusters ask leading questions that prompt a specific response, but most people don’t realize how a poor choice of words can significantly shift their assigned fault and make it much harder to earn a fair recovery.
If you say something like, “I was t-boned. I didn’t even see them coming.” The insurance company will use that “I didn’t see them coming” to assign a greater amount of the fault, suggesting that the crash could have been avoided had you been more aware of your surroundings, regardless of what actually happened.
Remember that you have no obligation to provide a recorded statement without an attorney. No matter what the adjuster claims, we advise that you do not make a recorded statement. If they coerce you, claiming they can’t provide a rental until you provide a statement, end the call and talk to your attorney immediately.
The other main way insurance companies trigger fault reassignment is through your social media account. Say you’re in a car crash, and you post a picture of your car to let your friends and family know what happened. This simple post opens your account to a subpoena from the insurance companies.
With a subpoena, insurance adjusters can look through your entire account, including your comments on other pages and even your private messages. So if a concerned family member asked about the crash via private messages and you explained what happened, your exact wording could be used against you just as in a recorded statement.
As you can see, navigating a car crash in comparative fault states is difficult, especially when you’re injured and trying to focus on feeling better. That’s why it’s a good idea to hire an experienced personal injury attorney to manage your case, not just to see that fault is correctly distributed, but to help you receive the maximum compensation you need to move forward.
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