The Other Driver Was At Fault. Why Has My Claim Been Denied?
You’re driving down the road and need to make a left hand turn. You slow down, activate your turn signal, and because of oncoming traffic come to a complete stop. Suddenly, you are rear-ended and injured. The driver that hit you states he does not recall seeing your turn signal, but admits to seeing your brake lights. You submit a claim to his insurance company to pay for your medical expenses. Claim denied. You fight for justice, but the courts say you cannot recover. There was some evidence you only had your signal on for 150 feet before the turn, rather than the 200 feet the law requires. See Blankley v. Martin, 101 N.C. App. 175, 398 S.E.2d 606 (1990).
You’re focused on the road and traffic ahead of you as you drive straight toward an intersection. You have a green light, so you keep going. Suddenly, another driver runs a red light and causes an accident in which you are injured. You never saw the other driver coming because you were focused on the road in front of you. You submit a claim to the other driver’s insurance company to help with your medical expenses. Claim denied. You fight for justice, but the courts say you cannot recover. You might have seen the defendant coming had you paid more attention to the road. See Kummer v. Lowry, 165 N.C. App. 261, 598 S.E.2d 223 (2004).
Your twelve-year-old son is playing with friends near a school bus stop when he suddenly runs across the road because the bus is coming to take him to school. A car comes around a corner speeding in your residential neighborhood and strikes and kills your child. You submit a claim to the driver’s insurance company to help with the funeral expenses. Claim denied. You fight for justice, but the courts say you cannot recover. Your son didn’t exercise the same degree of care an ordinary person would have under the same circumstances. See Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738 (1966).
The results of these case examples are due to a doctrine of tort law in North Carolina called contributory negligence. Contributory negligence is conduct on the part of the injured party that contributes in causing the injury. It prevents recovery even if the injury victim is only 1% at fault. The defense has been criticized because it bars all recovery no matter how egregiously at fault the defendant might be and allows the defendant and their insurer to escape all accountability. Today, only North Carolina, Virginia, the District of Columbia, Maryland and Alabama still have pure contributory negligence. In other states, the plaintiff’s recovery is reduced by the percentage they were determined to be at fault.
Contributory negligence is a tool insurance companies employ often to avoid paying out legitimate claims. Cases where there is a potential for an allegation of contributory negligence require careful investigation and fact-specific inquiries. Gathering evidence quickly after a preventable crash is vital in protecting yourself from this rather harsh defense. Many injury victims also make the mistake of thinking the insurance company is looking out for their best interest and provide recorded statements without thinking about what they are saying or how their statements can be misconstrued down the road. For these reasons, it’s almost always advisable for a crash victim to seek a consultation with an experienced personal injury practitioner to ensure their rights are appropriately protected after a wreck.
Blog post author Mike Rothrock practices law at The Law Offices of James Scott Farrin. Headquartered in Durham, the firm has offices throughout the state and focuses on Workers’ Compensation, Car Accidents, Commercial Truck Accidents, Personal Injury, Social Security Disability, Product Liability and Mass Torts, Intellectual Property, Civil Rights and Eminent Domain law.