Can I make a personal injury claim if I am partially at-fault?
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Who determines fault in personal injury cases?
The initial determination of fault is typically made by a police officer at the scene of the accident. However, because a ticket or a police report cannot be used as evidence of fault in court, insurance adjusters have to conduct their own investigation into the circumstances of the accident prior to determining fault or assigning shares of fault. Liability investigation is the very first step of the claim process. It usually involves statements of the parties to the accident, police reports, traffic cameras, dash cams, or other available videos, witness statements, location of property damage, etc.
In some cases, determination of fault is straightforward, such as in rear-end accidents because there is a presumption of fault on the part of the rear driver. In other cases, liability may be hard to establish because there are no witnesses or videos (e.g., who ran the stop sign?) or accidents that require extensive investigation (usually accidents involving multiple vehicles).
Can I dispute an insurance determination of fault?
A liability determination made by the insurance company is not a final determination of fault or no-fault, but it may affect the settlement of the claim. If the insurance company finds the claimant at fault, or partially at fault, they may deny the claim or may not offer the full value of damages. Ultimately, if the claimant is not satisfied with a pre-suit settlement offer, a personal injury lawsuit may be filed. In litigation, in most cases, the jury will decide liability based on presented evidence.
Although the adjuster’s liability determination is not final and can be contested, it is very difficult to turn the liability determination around without a personal injury attorney. Contested liability cases are complex. They usually require presentation of substantial evidence of the circumstances of the accident and lengthy negotiations. The supporting evidence may include a police report, witness statements, photographs of the accident scene and property damage to all vehicles, accident reconstruction report, black box or EDR data, traffic camera video, etc., etc.
Can I make a personal injury claim if I am partially at fault?
Recently, Florida has adopted a modified comparative negligence standard for personal injury cases, except medical malpractice. Under this standard, any party found to be greater than 50 percent at fault for his/her own damages may not recover any damages.
Additionally, in such comparative liability cases, the partially at fault party’s damages are limited by the percentage of his/her own fault. For example, if you are found to be 30% at fault and your total damages are $10,000, you may only be able to recover $7,000 of your damages ($10,000 reduced by 30% of fault).
Don’t assume that you cannot recover any of your damages just because you received a ticket or did something to contribute to the accident. Give us a call. You have nothing to lose. We may be able to dispute an unfavorable liability determination and/or if you are partially at fault, we can advocate for the lowest percentage of fault on your behalf. If we are not able to work out a fair liability apportionment with the claim’s adjuster, we can file a lawsuit to resolve the issue of fault in court. Please give us a call for a free non-obligation consultation to see if we can help you make your case. (386) 248-3000.