Learn how to establish who is responsible for paying your injury claim and what the insurance company will try to use against you.
When you’re injured because someone else made a mistake, or failed to do the right thing, you have a right to seek compensation.
Most injury liability claims are paid through the at-fault party’s insurance company. Common types of insurance claims include car accidents, slip and falls, and dog attacks.
No matter how you were injured, the burden is on you to convince the insurance company that their insured was liable, meaning legally responsible, for your damages.
Here’s where you will learn about negligence, different types of liability, and how the insurance company can try to reduce or deny your claim for compensation.
Negligence and Personal Injury Liability
Whether you decide to handle your injury claim yourself or hire an attorney, it helps to understand some basic terms used by insurance companies and lawyers.
Duty of Care is every adult’s legal obligation to avoid causing harm to others, such as safely operating a motor vehicle.
Negligence is when a person unintentionally makes a mistake or does something no reasonable person would do in the same circumstances.
Liability means legal responsibility. The at-fault driver is usually liable for the financial cost of the accident victim’s injuries.
Proximate Cause is an action that leads to an outcome which would not have otherwise happened. If the driver hadn’t turned in front of your bicycle, you wouldn’t have a broken arm.
Damages can include your medical bills, out-of-pocket medical expenses, lost wages, and pain and suffering.
The majority of injury liability claims are settled out of court by the insurance company representing the at-fault person or business. But before the insurance company accepts your claim, you must prove their insured caused your injuries.
In most cases, you’ll need to show their insured is legally responsible because they were negligent.
There are four elements of negligence. Think of the four elements like the four wheels on a grocery cart. You won’t get far pushing your cart if any of the wheels are missing.
You need all four elements of negligence to have a valid injury claim:
- Duty of Dare: The at-fault party had a duty of care to avoid causing harm to others
- Breach of Duty: The at-fault party breached their duty by doing something wrong, or failing to do what any reasonable person would do in the same situation
- Causation: The at-fault party’s breach of duty is the proximate cause of your injuries
- Damages: You have verified injuries, supported by medical bills and records and other proof of damages
Learn about the evidence you’ll need for Proving Fault in a Personal Injury Lawsuit.
“Torts” and Liability in Insurance Claims
The legal term for a harmful act or omission is a “tort.” Accidents that result in bodily injuries are sometimes called “tort claims” when the injured victim files an insurance claim or lawsuit.
The three main types of torts are:
- Strict Liability
A fourth type, vicarious liability involves other parties in addition to the person who directly caused your injuries.
Negligent Torts Cause Most Injury Liability Claims
A negligent tort occurs when a person has a duty of care to protect someone from harm and fails to act in a way that supports that duty. As a result, the person who was supposed to be protected is injured.
The negligent party can be an individual, business, or government entity.
Example: Injury Liability Claim Against Negligent Driver
Brad was trying to change the CD in his car stereo while driving down the road. Because he wasn’t paying attention, he failed to stop at a red light and slammed into the side of Rachel’s car.
He didn’t mean to cause an accident, but Brad’s negligence made him liable for Rachel’s damages.
Intentional Torts May Be Criminal
An intentional tort occurs when a person has a duty of care, yet deliberately hurts another person.
The victim of an intentional tort can file a civil injury liability claim against the person who caused the injury, and the attacker may also be arrested and face criminal charges.
Example: Intentional Tort from Road Rage Attack
Jack slammed on his brakes in the middle of the lane in a fit of road rage. He jumped out of his car and rushed to the car behind him, driven by George.
Before George could get his window up, Jack reached through and punched him in the face, breaking Jack’s nose.
Jack was arrested and charged with assault. George also filed an injury liability lawsuit against Jack.
Strict Liability Torts Don’t Require Proof of Negligence
Strict liability occurs when a person or corporation has a legal duty to act safely, and breaches that duty. Negligence and intention don’t matter in strict liability cases.
Proving the action or omission that caused the injury is enough.
Example: Strict Liability for Dog Bite
Allison was walking along a sidewalk in her neighborhood. She had Bucky, her four-year-old boxer on a leash. Bucky was well-trained and had never shown aggression to other people.
Suddenly, a couple of ten-year-old boys on skateboards whizzed by Allison. Startled by the noise and activity, Bucky lunged at one of the boys, biting deeply into his leg.
Even though Allison was a responsible dog owner, and Bucky had never shown prior aggressive behavior, Allison had to pay.
Because Allison’s state has strict liability dog laws, she was legally responsible for the child’s injury.
Vicarious Liability Brings Others into Your Claim
Vicarious liability is the legal term used when another person or business is also held responsible for the actions of a negligent individual.
Example: Vicarious Liability of Employer for Traffic Accident
Charlie was a driver for a company that sold and delivered auto parts to stores and vehicle repair shops. He was on his way to make a delivery when he glanced down to read a text from his boss.
Charlie didn’t see that traffic had backed up, and he didn’t have time to stop his box truck before slamming into the rear of the Johnsons’ family car.
All four members of the Johnson family were transported to the hospital with injuries.
The Johnsons’ attorney filed a claim with Charlie’s personal auto insurance company.
Because Charlie was on the job and driving a company vehicle, a vicarious liability claim was also made against his employer, the auto parts company.
How Adjusters Can Reduce Your Claim
Insurance adjusters are trained to find ways to reduce or deny injury claims. The first thing they look for is a way to blame the circumstances of your injuries on you.
In a few states (Alabama, Maryland, North Carolina, Virginia, and the District of Columbia), any blame that can be attributed to you can justify a denial of your claim under the pure contributory negligence rule. If you are so much as one percent to blame, you get nothing.
In states with pure comparative fault rules, you can seek bodily injury compensation from the other party, even when you are mostly to blame. Your compensation would be reduced accordingly, so if your claim was worth $10,000 and you were 80 percent to blame, you could still get $2,000.
Most states use modified comparative fault rules, meaning the insurance company can’t deny your claim unless you are equally to blame (50% rule) or more to blame (51% rule) than their insured. If you share less than half the blame, you would be eligible for a proportionate share of your claim value.
Example: Reduced Slip and Fall Compensation
Patrick met several friends at a local sports bar to watch a playoff game. The game was nearly over when Patrick headed to the bar for another pitcher of beer.
Before he made it to the bar, he slipped on a spilled drink and ice cubes on the floor. Patrick went down hard, hitting the edge of a table with his face before crashing to the floor and breaking his collarbone.
Patrick filed an injury claim against the bar for $10,000 to cover his medical bills, lost wages, and pain and suffering.
The bar’s insurance company had witness testimony and security camera footage that showed Patrick had been drinking steadily for three hours and was unsteady on his feet before he fell.
The adjuster argued that Patrick might not have fallen so hard if he weren’t intoxicated, and determined Patrick was 40 percent liable for his injuries.
Because of the shared liability, Patrick was only offered $6,000 to settle his claim instead of the $10,000 he had demanded.
When You Need an Attorney
You don’t have to settle for the insurance adjuster’s decision about shared liability. An experienced personal injury attorney knows the liability rules in your state and how to protect your interests.
Whenever there is a question of liability, you’ll need an attorney to get anywhere near the true value of your injury claim.
There are many kinds of complicated injury liability cases, for example:
You never have to tackle the insurance company on your own.
Most personal injury attorneys don’t charge for their initial consultation and represent injured clients on a contingency fee basis. In other words, your attorney won’t get paid unless your claim is settled or wins in court.
There’s no cost to find out what a skilled injury attorney can do for you.
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