As a Dallas / Fort Worth car accident lawyer I see the issue of contributory negligence come up all too often. For instance, let’s assume you get into a car accident and the insurance company believes you are partly at fault in causing the accident. Likewise, the adjuster accepts only 90% fault and puts 10% fault on you.
In this particular situation, the insurance adjuster is assigning 10% negligence in the car accident to the claimant. The act of attributing negligence to the plaintiff is called contributory negligence. The act of assigning a percentage to each parties’ negligence is called comparative negligence. In Texas, if you sue somebody for wrongful death or personal injuries, whether it is from a car accident or other type of accident, the defendant may attempt to show that the accident was either entirely the fault of the plaintiff, or that the plaintiff is comparatively negligent in causing the accident.
For example, let’s assume that you are in a car accident where you were rear-ended. The defendant might claim that you suddenly changed lanes and then slammed on your brakes in order to make a turn at the next intersection. If the jury believes the defendant’s version of the accident, then the jury might conclude that the accident was completely the plaintiff’s fault. Alternatively, the jury may also conclude that the accident was both the plaintiff’s and defendant’s fault. The jury would then assign a percentage of fault to each party. Therefore, any damages that are awarded to the plaintiff will be reduced by the plaintiff’s percentage of negligence. So if the jury awards the plaintiff $10,000 in damages, but finds the plaintiff 10% negligent, then the judge will reduce the damages award by 10% (or $1,000). Under Texas law, however, if the plaintiff is found to be more than 50% negligent, then the plaintiff recovers nothing.
Unfortunately, this is a very common tactic for insurance adjusters to frustrate claimant who are not represented by a lawyer. As a practical matter, however, 10% percent is not a whole lot when talking about settling an insurance claim. If your car accident claim is worth $10,000, then $1,000 (10%) really doesn’t make that much of a difference in whether your case settles or not. In my career, I rarely see cases go unsettled because of a 10% difference. Most of the time, the parties are able to meet somewhere in the middle and settle the claim. Had the adjuster not mentioned anything about the 10% reduction and just offered the $9,000, the parties may have been able to get the case settled. My advice is to not let this tactic effect your common sense. Always keep your eye on the bottom line and don’t worry about semantics.