Contributory Negligence in a hit-and-run

April 18, 2006 8:30 PM

I was involved in an hit and run accident as a pedestrian a little over a year ago, and I've got some questions about contributory negligence.

Short story: Myself and three other friends were crossing a lit street at midnight on New Years Eve's a year and 1/2 half ago, and two of us were hit by a car. The driver came around a corner, went between the two of us (I was struck by the front end, my friend by the rear, on opposite sides) and then went around the other corner. Police never found the guy, and now I'm the process of settling with my insurance company under my uninsured motorist coverage.

So now we've gone through this long dance, and they've come back with a figure, that's to me, unacceptable. They're attempting to claim that I might have been contributory negligent in the accident due, judging from a BAL slightly above the legal limit. That really doesn't concern me so much, because there's no law against being drunk and crossing the street. My question is what does an insurance company need to prove with respect to contributory negligence? Would they need to produce witnesses to testify to the fact that I did something to contribute to the accident? Does the fact that a felony hit-and-run took place (I sustained "serious bodily injury" with a broken jaw, hip and facial lacerations; my friend lost three of his front teeth and got a neat scar) change anything with regards to negligence? What is the burden of proof? Does the rule of Res ipsa loquitur come into play? The fact that the hit and run driver hit two people at once? Also, my friend has seteled with his insurance company and nothing about contributory negligence came up.

Is there anything I should know, or is there anything advice that anyone can give me about this? I'm naturally suspicious of insurance companies, and like to know what they would have to do in-order to prove my contributory negligence.

posted by SweetJesus to law & government (26 comments total)

Oh, also this happened in Rhode Island, and the insurance company is in Massachusetts.
posted by SweetJesus at 8:35 PM on April 18, 2006

Sounds like it's time to lawyer up. Insurance companies will try to get you to settle for the minimum amount possible, and due to their experience (relative to yours) in these matters - dealing with them every single day - they'll jerk you around until you have representation they know is playing hardball.

You may get some good, and bad, legal advice here, but without representation it will be hard to apply it anyway.
posted by kcm at 8:38 PM on April 18, 2006

A friend of mine was recently involved in a car accident and was completely not at fault. Her (my friend's) insurance company was notified and attempted to contact the offending party to no avail. The same insurance company then attempted to collect my friend's deductable and claimed that this would "speed up the process".

My friend refused, waited for the offending party's car insurance (in this case, rental car company) to receive the police report and eventually the rental car company paid the damages in full.

Moral of the story: do not trust your insurance company and instead consult a personal injury attorney.
posted by SeizeTheDay at 8:43 PM on April 18, 2006

I've got a lawyer who sits in with me during meetings for a hourly fee, but I'm not "lawyered-up" in the sense that I've obtained council. I haven't had a chance to talk to him about this latest development (I had the conversation about contributory negligence this morning) yet. I'd "ideally" like to avoid lawyering up beyond that because I don't want to pay a 33% feel on the settlement. This is Mass, so it goes to informal arbitration in the event that the company and I don't reach a settlement on our own. I'm not planning on suing.
posted by SweetJesus at 8:45 PM on April 18, 2006

From what I'd think (and, please, all of this very iffy and reflects more my critique of the legal world -- but it might be helpful to you anyways) -- You could argue your argument but to decide "what the law" declares about your contributory negligence you will have to go through the courts -- which means they can call witnesses, draw motions, and drag it out as they want.....that is rules of evidence would definitely come into play.....if it indeed their word versus your word (no witnesses....a judicial official or a jury (if it got that far) would determine who is right).

As for the contributory negligence aspect, it sort of sucks because it's hard to tell what the driver was up to here: Did he honk and you were "too out of it" to hear? Or, Was he drunk and, therefore, sort of negate how you were negligent?

It's a question that probably can't be answered but I think you can see how this will twist and turn anyways.....

But, yes, get a lawyer -- and I hope he will be good enough and less expensive than settling would be....

If he's smart, I think he uses the threat of defeating contributory negligence in a possible jury trial versus the insurance company -- calls their bluff of wanting to drag out the evidence process -- and has them up your settlement real quick as you do have a good case it seems.

You could do all this by yourself, but a lawyer will scare them more and make it official I'd think......
posted by skepticallypleased at 8:48 PM on April 18, 2006

The other thing you might want to consider is the average amount of settlement based on your claim and your area of residence. For instance, where I grew up, medical malpractice that involved the loss of lesser extremities, some loss of movement, etc. had a very low price tag. If I recall correctly, they said 20-40K for a lost leg or arm. In addition, again this only applies to where I grew up, malpractice that involved death normally settled at around 100K. Why? Average income is low, age is high, and people are fiscally conservative.

Maybe you should do some additional research to see if your protests regarding the amount are justified or if perhaps you're aiming a bit too high.
posted by SeizeTheDay at 8:51 PM on April 18, 2006

I've been through something similar (kid who had his licence less than a week "borrowed" grandma's car while she was in Florida, ran a red light, destroyed my car, nearly killed me), and I have to agree with the "Lawyer up" advice.

Once the insurance companies start talking about Contributory Negligence its a big flapping red flag that they're going to a) try and smear you (and your friends) as much as possible and b) try to settle for as little as possible.

In my case they tried to imply that I hit the kid on purpose.

Please trust me that it will be well worth the 33% -- my judgement more than tripled once I got a professional involved.

I used to be the person who said that there was too much litigation in this country and that getting a lawyer was not wise or necessary -- that clearly if all parties would just be reasonable it could be worked out in a fair way. I learned the very hard way that this isn't true. The insurance company does not want to be fair. They want to get away with paying you nothing, if they can do that.

Get a personal injury lawyer. In a year, you'll be glad you did.
posted by anastasiav at 9:05 PM on April 18, 2006

I worked for a PI lawyer over the summer. I'm not sure, but I think I heard that they often make the insurer pay legal fees. Settlement is something like your bills x3, with the other thirds going to the lawyer and (maybe?) his expenses.

I could be wrong. This is not legal advice. I had a very small job and have no idea about the actual workings of the firm, only what I heard from others.
posted by SuperNova at 9:52 PM on April 18, 2006

It's a trick question. Everyone's always drunk in Rhode Island. /snark

All you IANALs and IAALs on this thread, please read the question. SJ isn't collecting from the insurance of the guy who hit him. They never found the driver. He's trying to collect from his own auto carrier under the uninsured motorist coverage.

His insurance company didn't injure him. Instead, it has a duty to pay for his injuries arising from the contractual agreement. This has nothing to do with state tort law and everything to do with interpretation of the insurance contract. Their throwing the term "contributory negligence" at you is shady because contributory negligence is supposed to be a defense asserted against you by the guy who hit you with his car. Who is nowhere to be found.

Yes, hiring an attorney would be a very good idea at this point, but it should be one that has experience in negotiating first-party insurance claims. This may or may not be a PI lawyer.

Please, everyone, read the question.
posted by Saucy Intruder at 10:08 PM on April 18, 2006

" The insurance company does not want to be fair. They want to get away with paying you nothing, if they can do that."

In my experience, this is absolutely true, and based on what you have already said, I am sad to say that I also think you need to lawyer up.
posted by litlnemo at 11:37 PM on April 18, 2006

Make sure you interview a number of lawyers. And play hardball when you do it: don't pull any punches when it comes to nailing them down on what they will do for you. They are working for you: behave as an employer might when interviewing a potential employee.
posted by five fresh fish at 11:40 PM on April 18, 2006

A lot of factors could come into play in determining possible negligence. You mention it was a well-lit street, but don't mention the speed limit on that street. In other words, would a driver be expected to have sufficient reaction time if you were j-walking on a highway (obviously no) versus a school zone (probably yes--if they were going the speed limit). Were you crossing the street at a marked intersection? Was there even a marked pedestrian crosswalk in the area?

Rhode Island has some interesting laws regarding pedestrian rights that might come into effect (when you talk with your lawyer). For instance, RI is the only state in the country that allows joggers to run on the asphault (sharing the road with cars), even if a sidewalk is present. Every other state requires you to use the sidewalk. I mention this because if it turns out that you were crossing the road illegally, you might have other avenues of defense available to you.

I'm sorry for the injuries you suffered, but I don't think they necessarily will be a contributing element to your own culpability, though they certainly would come into play with the driver, if you could find the rat.
posted by Civil_Disobedient at 4:21 AM on April 19, 2006

Obligatory disclaimer: I'm not a lawyer, and certainly not your lawyer. Go get one before doing anything with the information provided.
posted by Civil_Disobedient at 4:23 AM on April 19, 2006

GET A LAWYER.

My husband used to deliver newspapers-in my little VW Golf. He was on the side of the road stuffing a paper tube about 5 or so in the morning when a drunk driver hit him head on-didn't even hit his brakes. Totalled my car, thankfully and miraculously my husband only was bumped, bruised and chipped a couple teeth.

The insurance company tried every trick in the book to avoid total compensation, including the contributory negligence angle-dragging their feet paying my car and REALLY dragging their feet on the tooth claim and medical bills. If we hadn't had a lawyer...anyway these guys try to drag out things to avoid paying.

GET A LAWYER.
posted by konolia at 4:31 AM on April 19, 2006

Thanks for the advice, but I know what I'm doing with respect to a lawyer. In Massachusetts, uninsured motorist claims don't even go to a jury trial without going to arbitration first anyway, so I'm not interested in giving away 33% from what I've been told by a number of people is an open and shut case - for the most part.

What I'd like to know is what would one have to do in-order to prove my contributory negligence? Would a witness need to testify to this to satisfy a burden of evidence, because they have no witnesses on their behalf. I just want to know if they're bullshitting me.
posted by SweetJesus at 8:04 AM on April 19, 2006

I'm sorry for the injuries you suffered, but I don't think they necessarily will be a contributing element to your own culpability, though they certainly would come into play with the driver, if you could find the rat.

From what I understand about uninsured motorist insurance policy law, my insurance company is acting on behalf of the guy who hit and ran me. They have to essentially defend from his position, no?

Their throwing the term "contributory negligence" at you is shady because contributory negligence is supposed to be a defense asserted against you by the guy who hit you with his car. Who is nowhere to be found.

If you're still around, why exactly is this shady?
posted by SweetJesus at 8:09 AM on April 19, 2006

If you're still around, why exactly is this shady?

(disclaimer: I am not yet a lawyer, not your lawyer, and my advice begins, continues and ends with: get a good lawyer.)

It's shady because this is a contract dispute, not a personal injury dispute. Claiming against your uninsured motorist coverage is exactly like claiming against your homeowners insurance when your house burns down after a lightning strike. This is analogous to a bolt of lightning hitting you when you are crossing the street. It's irrelevant whether the driver did anything wrong, because you're not suing the driver.

Stripped bare, a skeleton first party insurance contract wouldn't also care whether or not you did anything wrong. You got hit by a car, you got injured, you can't find the guy who hit you. These are the prerequisites for an uninsured motorist claim. But your contract MAY have exclusions in it, stipulating that if you did one of an enumerated number of "wrong things" that contributed to the accident, they won't pay.

What are these "wrong things?" The answer's in your insurance contract, and in a court's interpretation of your insurance contract. It's not "contributory negligence" because contributory negligence implies that there was "negligence" on the part of the other driver. Undoubtedly there was, but it's irrelevant since you're not suing the driver. You can't raise a legal defense to a personal injury lawsuit if there's no personal injury suit to defend against. Your insurance company can, however, allege and prove that you did one of the "wrong things" that trigger an exclusion in your contract.

That's what they are trying to do here, and they have every right to do so, but my point is that the use of the term "contributory negligence" implies that you are dealing with an insurance adjuster who is either so incompetent that he doesn't understand the difference between first-party and third-party insurance, or so slimy that he will try to get you to settle according to the doctrine of a law that may not actually apply. Or maybe your insurance contract says that its exclusion exactly follows the governing state law on contributory negligence, in which case they're right. This is why you need competent counsel to figure this out for you. This would be someone who is skilled in reading and interpreting contracts, not just someone who knows the law of negligence. A PI attorney may or may not be the right guy; an ethical attorney will refer you to someone else if it's not within the area of his expertise.
posted by Saucy Intruder at 8:45 AM on April 19, 2006

so I'm not interested in giving away 33% from what I've been told by a number of people is an open and shut case - for the most part.

And obviously it is since you're in this situation and asking for our help, yes?

That was my sarcastic font.

Since you have an offer on the table that you consider completely unreasonable you have a good starting point for your conversations when you interview lawyers. Why are you telling us your reasoning for not hiring one when you should be telling them? If, as others upstream have claimed, the payment will be notably larger if you involve an attorney, they likely will have no problem promising you that their contingency fee will not exceed an amount that will result in your final reward being lower than that crappy offer you already have.

Or you could keep saying "I don't like that advice, have any other advice?"

Aside from that: I had the conversation about contributory negligence this morning

Why are you having CONVERSATIONS with them? You now have no doubt that their intention is to pay you less than you should receive. You should stop having any discourse with them that they can deny and you need to get them to commit to a reason why they're refusing to pay more. Your lawyer will call this estoppel and it'll be useful even if you enter into arbitration.
posted by phearlez at 9:26 AM on April 19, 2006

Ok, I've rethought this through, and I think I understand it better. I was under the impression that this was a personal injury issue, and not an insurance policy issue. That's a world of difference from where I'm coming from, because under my legal insurance I'll get 100% fee coverage for insurance policy related issues.

Thanks for all the help, especially Saucy Intruder and Phearlez.
posted by SweetJesus at 10:37 AM on April 19, 2006

Dude, you are cutting your nose off to spite your face.

Your insurance agency is doing all they can do to screw you over. They have eons of experience in doing so. They are not your friend. They are worse than lawyers.

Yes, it is absolutely grating that lawyers skim 33% of the take. It is an obscene amount.

But when your lawyer scores you a settlement triple what the insurance company is offering you, you come out far ahead even with the lawyer's bill.

You have exactly two choices in this predicament. Either you bite the bullet and hire a lawyer, maximizing your claim; or you bend over and grease up your brown eye and let the insurance company put it to you.

Whatever floats your boat. I know which one I choose.
posted by five fresh fish at 10:37 AM on April 19, 2006

But when your lawyer scores you a settlement triple what the insurance company is offering you, you come out far ahead even with the lawyer's bill.

How? If the policy limit is 100,000, and they've offered me 60,000 (and I find it unacceptable), how could I possibly collect more than 100,000?
posted by SweetJesus at 10:45 AM on April 19, 2006

SweetJesus writes "I'd 'ideally' like to avoid lawyering up beyond that because I don't want to pay a 33% feel on the settlement"

You don't have to cut the laywer a percentage, your lawyer should offer pay as you go. At a minimum he will be able to explain the threat the insurance company is making and whether it has any merit on an hourly basis.
posted by Mitheral at 1:43 PM on April 19, 2006

How? If the policy limit is 100,000, and they've offered me 60,000 (and I find it unacceptable), how could I possibly collect more than 100,000?

How much was your pain and suffering? I mean, I have 30k on my renters insurance, but I'm not sure that all my stuff together maxes it out - point being, perhaps they think the 100k is not warrented. If you have medical bills, lost wages, etc, then you may hit that. But, perhaps they think that 60k is all that you're entitled to, and they're willing to arbitrate to save from the whole shebang.

OT: By the way, that overview of why this whole defense was slimey was brilliant, Saucy.
posted by plaidrabbit at 2:28 PM on April 19, 2006

How much was your pain and suffering? I mean, I have 30k on my renters insurance, but I'm not sure that all my stuff together maxes it out - point being, perhaps they think the 100k is not warranted.

They think 60,000 is good because they think they can get away with it. I've talked to a few lawyers today who think the 100,000 is open and shut (for the most part). I had 80,000 in medical bills and two jaw reconstruction surgeries...
posted by SweetJesus at 3:33 PM on April 19, 2006

I think that claim demands a response of "so then you'll take the case for a contingency with a guarantee that I get no less than $90,000? Since it's so simple, you know."
posted by phearlez at 3:42 PM on April 19, 2006

I think that claim demands a response of "so then you'll take the case for a contingency with a guarantee that I get no less than $90,000? Since it's so simple, you know."

I've since found that is moot, since under my legal insurance all insurance policy-related legal fees are covered 100%.

Good question to pose, though, regardless.
posted by SweetJesus at 3:53 PM on April 19, 2006