comparative negligence marketing presentation linked

Comparative Negligence Proper investigation, documentation and negotiation of

files using the principles of comparative negligence.

Four Types of Negligence

Five (5) states still recognize the pure contributory negligence rule, which says that a damaged party cannot recover any damages if he is even one (1) percent at fault.

Thirteen (13) states recognize the pure comparative fault rule, which allows a damaged party to recover even if it is 99 percent at fault, though the recovery is reduced by the damaged party's degree of fault.

Eleven (11) states follow the 50 percent bar rule, meaning a damaged party cannot recover if he is 50 percent or more at fault, but if he is 49 percent or less at fault, he can recover, though his recovery is reduced by his degree of fault.

Twenty-one (21) states follow the 51 percent bar rule, under which a damaged party cannot recover if he is 51 percent or more at fault, but can recover if he is 50 percent or less at fault. Again, the recovery would be reduced by degree of fault.

Negligence Defined

The omission to do something which a reasonable man,

guided by those ordinary considerations which ordinarily

regulate human affairs, would do, or the doing of something

which a reasonable and prudent man would not do.

-Blacks Law Dictionary

Investigating Liability

Recreating an accurate picture of what happened.

Insured statement

Claimant statement

All occupant statements

All witness statements

Assessment of credibility

Examination of physical evidence

Police Report

Scene Investigation

Determination of cause of accident

Determination of Cause

Primary determinations of liability:

Did any party violate a state or local statute?

Did this violation have any bearing on the accident?

Was a tort committed?

Who is the tortfeasor?

Are their joint tortfeasors?

Are their empty chair defendant’s?

Were any parties responsible who were not involved in the accident?

What was the proximate cause?

That which, in a natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury and without which the

result would not have occurred.

Determination of Cause (cont.)

Secondary determinations of liability:

Intervening Cause

An independent cause which intervenes between the original wrongful act or omission and the injury, which turns aside the natural sequence of events and produces a result which would not otherwise have followed and which could not have been reasonably anticipated.

Last Clear Chance

Did the part with the last clear chance to avoid the accident do so? Are they liable for their failure to act on this chance?

Attractive Nuisance

Was the instrumentality maintained in such a condition that it was dangerous and this danger was known.

Rescue Doctrine

One who is injured in a voluntary attempt to rescue a person whose life is imperiled by the ngeligence of another, is entitled to recovery from the negligent person.

Assumption of Risk

The ability to reasonably anticipate if one’s actions may result on harm or injury.

Adjuster Responsibilities

These concepts are a general overview;

State laws do vary widely;

The circumstances of any accident are unique and it is imperative that the adjuster address each and every potential duty owed and breached by all potential parties to the loss;

Adjusters must understand nuances within their specific venue and apply these concepts to that venue.

Duties of a Motorist

Duty to Avoid an Accident

A driver operating a vehicle on a public highway does not have exclusive right to use the road. The duty of care imposed upon the motorist requires the exercise of reasonable care and caution for the rights and safety of others using the highway. This duty is owed to the operators and occupants of other vehicles on the highway, occupants of the operator’s own car and pedestrians, as well as to owners of property either on the highway or adjacent to it.

Assured Clear Distance

The application of this result requires a driver

to keep his car under such control that he can

stop within the distance which he can clearly

see, should such a stop be necessary to

avoid an accident.

Same Direction of Travel

When two or more cars are traveling in the same direction, the lead car has the superior right of way. The driver, however, must exercise care for the safety of the occupants of the cars following him by:

1) Giving timely notice of stop or reduction in speed.

2) Giving notice of a turn as well as a chance in lanes.

The driver of the lagging vehicle is also charged with the duty of exercising reasonable care with respect to the lead vehicle by:

1) Being prepared to avoid danger in case of any movement on the part of the lead vehicle which is properly signaled.

2) Following other cars at a reasonably safe distance.

Opposite Direction of Travel

Vehicles must be driven on the right-hand

side of the road and are required to stay to

the right of the center line. When a collision

occurs on the wrong side of the road, a

presumption of negligence arises against the

driver of the vehicle who is on the wrong side.

Intersections

Require greater duty of care than the open road.

Maintain proper lookout

Reducing speed

Sounding horn if necessary

Controlled intersection

Duty to obey traffic signals

Yield right of way where required

Yield to pedestrians in crosswalks with a green light

Uncontrolled intersection

The motorist who enters first has the right of way

Vehicles arriving simultaneously shall give the right of way to the vehicle to their

right.

Entering from a private way

Vehicles on the highway have the right of way

When a private way crosses a sidewalk, the

motorist must stop before driving on the

sidewalk. Pedestrians on the sidewalk have

an absolute right of way. Failure to yield,

resulting in injury to a pedestrian is

negligence.

Scene Diagrams

Pictures of accident location from all

directions

Measure the skid marks

Look for intervening causes (shrubs, signs,

debris)

Canvass for witnesses

Turns

Right turns should be made as close to the right curb as practicable.

When making a left turn at an intersection the motorist is obliged to exercise a high degree of care and to seek an opportune and safe time to turn.

Once in the intersection the motorist is required to yield the right of way to vehicles approaching from the opposite direction.

However, where a drive has proceeded fare enough into the intersection to have “occupied” it, other vehicles approaching from the opposite direction must yield the right of way.

Duty to Reduce Speed or Stop

A motorist is required to exercise care and prudence in the operation of the vehicle.

The motorist may be obligated to reduce speed or stop when:

The road or weather conditions are such that it is hazardous to drive at a normal speed. The fact that the motorist was driving at a speed within the posted limits will never exonerate/excuse the motorist from the duty to exercise appropriate care.

Another motorist on the highway is in a position of danger or peril.

The windshield clouds or ices to the point that the motorist cannot see.

A motorist blinded by headlights from an approaching vehicle. If an accident should occur, the motorist whose lights caused the blindness is negligent and did contribute to the accident.

Skidding

The skidding of a vehicle is not negligence or

evidence of negligence. In cases involving a skid,

the question of negligence will depend upon the

operator’s conduct in operating the vehicle.

Sudden Emergency

When a motorist is confronted with an emergency, he must take whatever course of action is available to avoid an accident.

The actions taken may even include violation of the rules of the road. The violation will not constitute negligence if the following evidence is produced: The violation was justified under the circumstances.

The motorist’s failure to exercise care did not create the emergency.

The motorist exercised reasonable care in facing the emergency.

Note that this defense is not available to the motorist who creates the emergency.

Obstruction of Vision

Motorist owes a greater duty of care when

vision is obstructed.

Potential negligence on parties who caused

the obstruction.

Passing

A passing vehicle is under a duty to exercise reasonable care to avoid an accident and to observe all passing regulations.

Failure of a motorist to comply is evidence of negligence.

A motorist being passed must give way to the passing vehicle and not increase his speed until completely passed by the overtaking vehicle.

Pedestrians

Motorists and pedestrians have equal right to

use the highway.

Pedestrians have increased rights in marked

crosswalks and with signals.

Pedestrians can be liable for their actions (i.e.

dart-outs).

Passengers

Passengers conduct determines their liability. Intoxication of the passenger does not necessarily constitute

comparative negligence. However, factors such as assumption of risk should be considered.

Intoxication of the driver may result in comparative negligence on the passenger if he knew of the driver’s condition.

Duty to warn of danger would apply in situations where the passenger knew that the driver is not competent to operate the vehicle.

Riding in a dangerous position may result in negligence on the passenger.

Interference with the operation of a vehicle.

Vehicle defects known to the passenger.

Liability Summary

Adjuster must make a decision and document

in their claims system;

Explanation of liability determination must be

clear enough for an independent third party to

understand the rationale;

Liability roundtables should occur in branches

on a weekly basis where difficult situations

can be discussed.

Joint and Several Liability

Generally, this provides that a plaintiff may recover all

damages from any of the negligent defendants

regardless of their individual share of the liability.

“Deep Pocket Rule.”

Wide variations in the application state to state,

including some states in which joint and several has

been abolished or limited to portions of a claim, such

as economic damages.

Adjusters are responsible for understanding their

jurisdiction. J & S Liability can have a significant

impact on the resolution strategy.

Liability Write Up

Duties Owed

Detail the duties owed by each party

Primary considerations

Secondary considerations

Duties Breached

Detail the duties breached by each party

Primary duties

Secondary duties

Negotiating

Customer needs to understand the law that is applicable in your state.

Liability law should be explained during first contact.

Customer may opt to go through own carrier if there is a chance for comparative.

Don’t leverage the PD with the BI.

Don’t take the path of least resistance.

Subrogation

If the adjuster cannot resolve liability with the other party then utilizing the assistance of Sequoia could be considered;

Filing

Against Carrier

Against UM

Inter-Company Arbitration

Asset Checks;

Expertise- Over 60 years of combined experience amongst the principals;

Unparralled results;

Immediate bottom line impact.

Chris Tidball, SCLA, SSBB

P.O. Box 600845

Jacksonville, FL 32260

(904) 742-9031

chris@christidball.com