In motorcycle accidents especially, insurance company adjusters are prone to assign you 10-20% liability “just for being there.” This common assertion from insurance companies is not based on the law and you should not accept the insurance company’s estimate of your fault without consulting with an experienced attorney.
I have spoke with numerous motorcyclists who have told me that in their discussions with an insurance company the adjuster has represented to them that they were partially at fault “just for being there.” In my experience, many people accept this as true. This is important to you because if the insurance company believes you are partially at fault for your accident it may reduce the amount of money it will pay you or deny your claim altogether.
There is a legal concept called comparative negligence that does apply to circumstances where liability is not clear cut or conceded by the insurance company. Comparative negligence operates far differently than the insurance company championed automatic 20% just for being there approach.
Below I will explain negligence and liability in more detail, answer the question you should be the most concerned about, and provide you with a recommendation on what you can do to maximize your claim going forward.
Before defining comparative negligence, it makes sense to first explain ordinary negligence. In Wisconsin legal negligence occurs when a person fails to exercise ordinary care. What is ordinary care you ask? Good question. Ordinary care is the care which a reasonable person would use in similar circumstances. I realize this definition is not particularly helpful.
Stated differently, a person is not using ordinary care and is negligent, if the person, without intending to do harm, does something, or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to you or your property.
This concept of negligence is critical to you because if a person is negligent, he or she becomes “liable” for the damages caused by the negligent act or omission. In some accidents, there is no serious question as to liability/negligence. For example, if a motorist who is texting and driving rear ends you, negligence and liability seem pretty clear.
However, situations can be more complicated if more than one person was responsible for your accident. In these situations, comparative negligence becomes important. Comparative negligence is the legal concept used to determine the percentage of fault for every party to your accident. Our law states that every person, in all situations, has a duty to exercise ordinary care for his or her own safety.
If your case proceeded all the way to a trial a judge or jury would be required to determine the percentage of your fault and for any other party. The only requirement is the total of percentage of fault must equal 100%.
2. Can You Get Money Even if You Are Partially Responsible For The Accident?
Yes, you can get money compensation for your injuries even if you were partially responsible for the accident. In Wisconsin, as long as your share of fault for the accident does not exceed 51% you would “win” your case and could recover compensation.
If your negligence exceeds 51% then you cannot recover any damages. A finding of 51% of fault, or more, would mean that you were primarily responsible for the accident and cannot recover compensation from any other person.
If your negligence is determined to be more than 0 but less than 51% you can still recover money compensation for your injuries, but your recovery is reduced by the extent of your own fault. For example, assume you were injured and suffered $100,000 in damages. Pretend that a jury in your case determined you were 40% responsible for the accident and the other driver was 60% at fault. In this case, although your full claim value would be $100,000, you would only be able to collect 60% of that sum, or $60,000. In effect your damages are reduced by the extent of your own negligence.
3. What Should You Do Next?
If you were injured in a motorcycle accident I strongly recommend that you consult with an attorney so you can discuss the details your situation in private. As you can see the percentage of fault can have a significant impact on your case including the possibility of barring you from bringing a claim in the first place.
You should keep in mind that your percentage of fault is not magically predetermined in any way. What you may believe is clear fault on the other driver, an insurance company may, and will likely, take the opposite view.
The bottom line is this: You should not accept an insurance company’s determination of fault. Rather, I recommend you consult with a motorcycle injury attorney so he or she can properly evaluate your case under the protections afforded by the attorney client relationship.
Lastly, I welcome you to have me to tell you exactly and precisely what I would do in your situation. If, after reading this post, you are looking to work with an attorney who believes in doing things right, having full accountability, and backing it up with action that actually gets results, give me a call. There is no cost or obligation associated with our initial consultation.
To take advantage of your free consultation you can either call me at (608) 282-6200 or email me at firstname.lastname@example.org.