What If One Of The Accident Victims Was Also At Fault?
- March 7, 2017
The assignment of fault in automobile accidents is rarely black and white. Oftentimes, fault may be assigned primarily to one party, but other drivers, including potential victims of the accident, may also be assigned a smaller portion of fault for the accident. The level of fault for the accident attributable to a victim may have an impact on the amount of recovery for damages that driver is entitled to under the law.
If you are injured in an automobile accident due to the fault of another driver, typically you may be able to recover damages from the driver to make you whole following the accident. However, if your actions, omissions or decisions have played a part in causing the accident, it may impact your ability to recover or the amount that you can recover. An experienced personal injury attorney should be consulted to help you protect your rights in this situation. It is not uncommon for insurance companies to initially deny any claims when the insurance company feels that liability is contested or that the victim has actually contributed to the cause of this accident. In these cases, an experienced attorney can help you navigate the complex negotiation process with the insurance company and can even proceed to litigation against the insurer if a favorable settlement cannot be reached.
There are a number of ways in which a victim of an automobile accident may also have contributed to its cause, even if that individual was not the primary cause. For example, if a driver was struck by another driver that failed to yield the right of way when required to do so by law, the driver that was struck would typically not be at fault for the accident. But what if the driver of the vehicle with the right of way was: (1) speeding; (2) texting, talking on the phone, or otherwise distracted to the degree that he or she could not adequately respond to the situation; (3) operating the vehicle under the influence of alcohol or drugs; or, (4) driving without a license? Each of those situations may have played a part in actually causing the accident even if that driver had the right of way. In those situations, an insurance company may be less likely to pay the same amount of damages it would pay if those factors were not present. Likewise, a court of law may determine any of those situations contributed to the cause of the accident and may choose to decrease the amount of recovery available to the victim. In certain cases, if the court determines the fault of the victim was too great, a court may deny any recovery at all to the victim.
The laws on how contributory negligence factors in to the amount of damages available to a victim or the ability of the victim to recover at all varies from jurisdiction to jurisdiction. Additionally, the type of negligence committed by the victim may also play a significant role in the ability of the victim to recover. For example, in many jurisdictions, the intoxicated driver will automatically be ruled at fault for the accident, under the theory that the driver should not have been on the road, and but for his or her choice to drive under the influence, the accident would never have happened. In these situations, even if the intoxication did not play a clear role in the accident, the intoxicated driver may be barred from recovering, even if that driver would have not been assigned fault but for their intoxication. The assignment of fault can be a highly contested issue between insurers and victims, and it can become the key point of contention in legal proceedings. Therefore, it is imperative that you seek the assistance of an experienced attorney to protect your rights.