Human error causes over 90 percent of the car crashes in Kentucky, a statistic which is frequently cited in the push for driverless cars. But which driver made the critical error which caused the crash? Frequently, the tortfeasor (negligent driver) is entirely at fault, at least from a legal perspective. Other times, however, both drivers were at least partially at fault. 

In situations like these, the comparative fault doctrine, which is also called the contributory negligence rule, comes into play. All states use this doctrine, but as outlined below, it varies significantly in different jurisdictions.

Regardless of the location, the insurance company bears the burden of proof and the burden of persuasion. So, a skilled Lexington personal injury attorney has two chances to at least partially derail the contributory negligence defense and obtain maximum compensation for car crash victims.

What’s at Stake

In a serious injury claim, the medical bills alone often exceed $100,000. In a catastrophic injury claim, like a spine injury, the medical bills could exceed $4 million. These figures prompt many insurance companies to vigorously defend car crash claims. 

Despite what TV commercials claim, most insurers do not care about their policyholders. If they cause crashes, the company simply drops them or increases their rates. However, most insurers care deeply about their bottom lines. These companies make money by collecting premiums. They lose money when they pay claims. It’s simple economics.

A brief aside here. Most health insurance companies do not cover injury-related costs, for liability reasons. But most victims need immediate medical help. You never know how badly you were hurt until a doctor thoroughly examines you.

So, attorneys normally send letters of protection to medical providers. Since these letters guarantee payment when the case is resolved, the providers charge nothing upfront.

Back to the blog. Since so much money is at stake, insurance company lawyers typically look for legal loopholes which may apply. There are a number of affirmative defenses in negligence law, such as sudden emergency and assumption of the risk, which torpedo victim/plaintiff claims. However, these defenses are usually only available in limited situations.

Comparative fault is different. As mentioned, after a tragedy like a car crash, there is sometimes enough blame to go around.

The Majority Comparative Fault Rule

Most states have modified comparative fault laws. Victims are entitled to compensation if the tortfeasors were at least 50 or 51 percent responsible for the wreck.

Assume Harry rolls through a red light to make a right turn (a California stop). At the same moment, Sally is speeding through the intersection on green. Harry meets Sally in a most unpleasant manner. You probably saw that one coming. The total of Sally’s economic and noneconomic damages is $100,000. After hearing the evidence, the jury divides fault 50/50 between Harry and Sally.

If this wreck occurred in Tennessee, which is a 50 percent modified comparative fault state, Sally would receive $50,000 (half of his damages). If the wreck occurred in Ohio, a 51 percent modified comparative fault state, Sally would receive nothing. Harry’s fault did not exceed Sally’s fault.

So, in many states, 1 percent is a big deal. Many jurors throw up their hands and simply divide fault 50/50. That habit could have devastating consequences for some victims. However, Kentucky is different.

The Kentucky Rule

The Bluegrass State is one of only nine pure comparative fault jurisdictions. Even if the victim is 99 percent responsible for the wreck, the tortfeasor must still pay a proportionate share of damages. Therefore, in Kentucky, the comparative fault defense can never cut off damages completely. The defense can only reduce the amount of compensation.

This reduction is only available if the insurance company clears two legal hurdles, the burden of proof and the burden of persuasion.

In this context, the burden of proof is a legal question. Insurance company lawyers must convince the judge that Sally’s negligence meaningfully contributed to the wreck. If Sally was speeding, but only 5mph above the limit, her excessive speed probably did not meaningfully contribute to the wreck.

The burden of persuasion is a fact question. Insurance company lawyers must convince jurors of the same thing. This time, instead of convincing one judge, the insurance company must convince twelve jurors, many of whom do not like insurance companies. That’s a very tall order.

Comparative fault could reduce the compensation car crash victims receive. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act.