What Is Comparative Negligence? How Can It Impact My Auto Injury Case?

Under New Hampshire law, comparative negligence is an analysis and examination of the actions of all parties involved in the incident –i.e. what did Driver A do and what did Driver B do. It is gauged by putting a percentage on who is at-fault and liable for the injuries sustained in the accident. For instance, one driver could be 100% responsible for an accident while the other is 0%. Driver A rear-ends Driver B who is completely stopped at red light. However, if 100% to 0% is not the case, then we’d have to take a look at the second driver’s at-fault percentage. Did Driver B stop short or unexpectedly? Was the second driver distracted? Why were they not paying attention? The second driver may not have directly contributed to the accident, but they may have been indirectly at fault if they were excessively speeding, had a drug or alcohol content in their bloodstream, or anything of that sort, then those actions would be assessed and evaluated.

Accordingly, if you are injured in an accident and your liability is less than 50%, you would be able to recover. If you were injured in an accident, and it’s determined that your liability is greater than 50%, then you would not be able to recover because you are going to be the one that caused the injuries to yourself and possibly someone else.

When we look at all of those factors and circumstances that surround the accident, we are going to have to subjectively assign a percentage point or value. That percentage point often becomes the argument with the adjusters. Consequently, the percentage point could then be argued in front of a judge or jury to determine who is at-fault and who can recover damages for their injuries.

What Steps Should I Take If I Have Been injured In An Auto Accident And Need To File A Claim?

If you have been injured in an auto accident and need to file a claim, it is important to document, document, document. All of the facts and circumstances need to be taken into account. When most people get in an accident, they usually first check on the other driver, themselves, and the passengers of the vehicle to address medical treatment for everyone involved. Further, you should take a couple of pictures of the car and exchange your information with the other driver. Ultimately, you’re also going to be in contact with local law enforcement and/or EMT emergency response personnel. Thereafter, it is important to account for the car damage estimates, follow up on medical treatment and care. You should also keep a written log or some manner of the recording of how the accident transpired. I always advise clients to take the calendar off the kitchen wall and come up with a coded system of recording everything. I know everyone uses their cell phone, but everyone can benefit from using a wall calendar.

On the wall calendar, you can write down your pain scale for the day, when you went to a doctor’s appointment, if you’ve missed days of work, or if you were not able to do social activities because of the accident. The wall calendar will come in handy when we’re negotiating with an adjuster or presenting your case in court. We can pull out that calendar and show it to the defense attorney, the adjuster, and the jury, and demonstrate that we took contemporaneous notes involving the accident that occurred right through the present day. Of course, they’re going to push back and say that you must have been planning the lawsuit from the moment that it happened. The response to that statement would be yes, we have been planning because we live in a litigious society and preparation is key in order to protect our actions going forward. The moment you start taking documentation, it becomes an ongoing process throughout the entire course of the case.

Should I Notify My Insurance Company Of An Auto Accident?

You have an obligation to notify your insurance carrier of the accident and should do so in a timely manner. Once your medical needs are addressed at the scene and you’re in a safe place where you can sit and compose yourself, you can give a narrative report to your insurance carrier about the accident. Your insurance carrier will then notify the other side/other insurance carrier. You do not need to contact the other side. As a matter of fact, you should not contact the other party’s insurance company because they will then have a recorded statement from you that can hurt your case. For instance, something as simple as answering how well you are currently doing can be taken out of context and used against you by the other side’s insurance carrier. For example: Initial report to adjuster in cordial opening remark greeting: ‘how are you?’ ‘I’m good and here is what happened’….That innocent automated response can be interpreted months later that ‘how could you be injured, you told our claims representative that you were good that day…..’ So speaking with the other insurance carrier does not pay literally or figuratively.

What Defenses Do Insurance Companies Use To Avoid Paying Out On Auto Injury Claims?

Insurance companies use a variety of defenses to avoid paying out on auto injury claims. They’re going to try to delay, deflect, minimize your injuries, cause frustration on your part, and carry out some level of avoidance of your claim. In other words, the insurance carrier will not return phone calls in a timely manner, they will not make a timely settlement offer, and will say whatever they can about your physical well-being prior to the injury to criticize your condition. For example, they can say that someone who is overweight complicated his or her recovery. Or, they can say that somebody who smokes or drinks compounded their ability to heal in a timely fashion as opposed to someone who doesn’t consume. They can also minimize the injuries and say that ‘it’s just soft tissue – this person didn’t break any bones’. They’re going to work towards not paying out based upon the set of circumstances that you provide them. It is all in the hope that you’ll throw your hands up and say that you’ll take the latest offer, want closure on the matter, and no longer want to deal with it. Therefore, they’re going to prey upon your anxiety. And, they’re going to prey upon that level of frustration just to minimize the damage award owed to you.

Can I Handle An Auto Injury Claim On My Own Without An Attorney?

You certainly can handle an auto injury claim on your own, but you will be leaving money on the table. You will also be leaving yourself exposed to repaying creditors. There’s no obligation to use an attorney, but I always give the example about how attorneys themselves contact or hire other attorneys when they get into personal trouble, divorce, financial situations, or business ventures to help them through the process: Lawyers hire other lawyers, you should too. Therefore, you need to find someone who is an expert or professional in the field. An experienced personal injury attorney has done volumes of those types of cases. They know the subtle nuances and can advise you accordingly. If you call up the insurance company, tell them that you were injured, give them an account of what happened, and they make you an offer, there is no going back or reopening of the case if you accept their offer.

If you reaggravated an injury from the past, or reaggravated an injury that was new and initial in that accident after a settlement, you can’t reopen the case to get money for future treatment. Thus, rushing into a settlement could close the ability to recover in the future.

Moreover, you also need to be aware of and concerned with the laws that involve Medicare and Medicaid. For example, Medicare and Medicaid require payback for expenses that were paid on your behalf. So, if someone is collecting disability on a government assistance program and monies are paid out for that treatment, it is an obligation of the person receiving that money to pay them back. You cannot double dip on a recovery. If you accepted a settlement that is at or about the amount of the cost for health care that was applied to you, you might be penniless at the end. Again, any money that you recovered has to go back to the health insurance carrier to pay for the care that was provided to you.

Consequently, there is a huge risk to you for not having an attorney. You may not get the appropriate amount of compensation and run the risk of paying back compensation that you received to health care companies who file a reimbursement lien on your case.

For more information on Comparative Negligence In Personal Injury Claim, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (603) 880-1300 today.