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Comparative fault, or contributory negligence, is probably the most common insurance company defense in car wreck claims. All states recognize this defense, but it works differently in different jurisdictions. More on that below.
A San Jose car accident attorney must be mindful of possible defenses, like comparative fault, when preparing a case. The comparative fault defense cannot completely derail a California negligence claim, at least in most cases. But it could be the difference between receiving fair compensation and settling for less.
Many tragedies in life involve joint responsibility. Both spouses share some responsibility in almost all divorces. That shared responsibility usually is not 50-50. It might even be 99 percent one spouse’s fault and 1 percent the other spouse’s fault. But there’s always enough blame to go around.
Vehicle collisions are another example. For example, Ben might change lanes illegally and cut off Luke, who is speeding. Ben’s resulting damages might be $100,000. In all states, jurors must apportion blame between the two parties on a percentage basis.
Here’s where things get different. California is a pure comparative fault state. The judge apportions damages based solely on the percentage of fault. So, if Ben was 60 percent responsible for the wreck, Luke must pay $40,000.
Only about a half dozen states are pure comparative fault jurisdictions. Most states are modified comparative fault states with a 51 or 50 percent cutoff. Unless the tortfeasor is 50 or 51 percent responsible for the wreck, depending on the jurisdiction, the victim receives nothing.
Neighboring Oregon has a 51 percent bar. So, in the above example, Ben would get nothing, because he was mostly responsible for the wreck.
The burden of proof refers to the legal portion of the contributory negligence defense. Insurance company lawyers must convince the judge that Ben’s speeding significantly contributed to the wreck.
Ben’s actual velocity usually comes into play. There’s a difference between 5mph over the limit and 15mph over the limit, even though Ben was speeding either way.
This requirement trips up many comparative fault claims. Frequently, there’s not enough evidence to conclusively establish actual speed. Witnesses can only testify that Ben was moving faster than normal. They can’t conclusively establish how fast he was going.
This evidence is normally available. But many insurance defense lawyers either don’t know how to obtain it or don’t act quickly enough to preserve it for trial.
The bad news is that the burden of proof is rather low. There must only be enough evidence to allow jurors to consider the defense. Many judges err on the side of caution and almost always allow jurors to hear evidence of comparative fault, even if there’s not much evidence there.
So, if the argument makes it past the judge, the insurance company still has work to do. Its lawyers must start all over with jurors. But this time, they must convince them that Ben’s excessive speed really caused the crash and it wasn’t just a possible factor.
Comparative fault could reduce compensation in a car wreck claim. For a free consultation with an experienced personal injury attorney in San Jose, contact Solution Now Law Firm. Lawyers can connect victims with doctors, even if they have no insurance or money.
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