Intelligent, Aggressive Representation For The Injured And Disabled

Attorneys Gardberg & Kemmerly
Photo of attorneys Jonathan P. Gardberg and Colin Edward Kemmerly


by | Jun 22, 2011 | Personal Injury |

Consider this hypothetical situation: Andy is driving North on Highway 101 and is text messaging his friend while traveling 75 miles per hour in a 45 mile per hour speed zone. Brenda is on Main Street, approaching the intersection of Highway 101, when she fails to stop, or even slow down, for the stop sign. There is a T-bone collision and both drivers are injured. Assume that each driver has enough liability coverage to pay for all of the damages.

Whose insurance policy is responsible for paying for the injuries and damages? It is a difficult situation since each driver was doing something negligent. The answer will depend on a lot of variables, and one of the most important variables is the state in which the accident happened.

In Alabama, it is likely that neither Andy nor Brenda will be able to recover from the other driver’s liability insurance policy, because Alabama law generally states that a driver whose own negligence contributed to an accident is barred from recovering against another driver or liability policy. In theory, being even 1% at fault will bar a plaintiff’s liability claim in Alabama. This rule would prevent either party from recovering payment from the other’s liability carrier. This is referred to as the rule of contributory negligence.

Louisiana and Mississippi, as well as several other states, follow a different rule called comparative negligence. In comparative negligence states, if an auto accident case goes to trial, a plaintiff’s award of damages will be reduced by the plaintiff’s percentage of fault. For example, if Andy was the plaintiff and the jury found that Andy was 40% at fault and Brenda was 60% at fault, Andy’s award of damages against Brenda would be reduced by 40%. So, if Andy’s damages totaled $10,000, he would only be entitled to $6,000 from Brenda’s policy. In a pure comparative negligence state, this rule would apply even if the plaintiff had a higher percentage of fault than the defendant.

Some states have a comparative negligence policy with variations. For example, in Georgia, a plaintiff’s award of damages against a defendant is reduced by the percentage of the plaintiff’s fault, but the plaintiff cannot recover anything at all if the plaintiff is 50% or more at fault.

Things get even more complicated if each driver has sued the other, or if there is a third party involved. Even though most auto accident cases settle before trial, these rules have a crucial impact on the evaluation and settlement of a case.

Not only are laws different from state to state, but laws can also change and evolve over time within each state. This is one of the many reasons it is important to seek professional legal help if you are ever in an automobile accident.



RSS Feed