Kojo Nnamdi recently had a great discussion about Contributory Negligence. Here's my email to him about it.

On May 19, 2016 Kojo Nnamdi hosted a show about DC's potential change of it's contributory neglience laws. Here's a link to the show.  

Unfortunately, Virginia also applies contributory negligence to personal injury cases. So I decided to write Kojo about my thoughts. For those of you interested, here's my email:

Dear Kojo,

Big fan of the show! I’m a personal injury attorney at BenGlassLaw in Northern Virginia, and your discussion on DC’s contributory negligence law was great. When it comes to the “boring” subject of insurance, awareness is absolutely vital because in my practice I find that people simply don’t think about insurance until they need it.

I had a few thoughts on Mr. McOwen’s characterization of the success of contributory negligence: 

1.  The “1% rule is a myth.” I’m not sure where he came up with this belief. Because most cases that I discuss with insurance adjustors, where there’s even a hint of contributory negligence, the adjustors are quick to deny the claim stating that the injured party was at least one percent at fault.

Heck, just recently, I had a young man that was driving down an open street when the defendant disregarded his stop sign from a side street and crashed into my client. We had to litigate the case because my client “must have been speeding” (to be clear, there was no witness to confirm this argument) and a jury could have found him one percent at fault. 

2. Contributory negligence laws are “successful.” I guess if you’re the insurance industry, sure. But for an injured party, contributory negligence is anything but successful. And what is so frightening, factually, they don’t even have to be contributorily negligence. A potential “contrib” argument is leverage that insurance companies use to de-value valid claims because going to trial is an uncertain prospect, where juries make determinations of facts based upon many variables that often time have nothing to do with what happened in the accident. Not surprisingly, an “unlikable” client (however you wish to define that) has much less leverage than a likable one.  

3. Contributory negligence is the law of the land in the DMV area, where there’s a large volume of traffic. Mr. McOwen seemed to imply that this is a good thing. However, it’s the volume of traffic in the area that makes contributory negligence here so counterintuitive. You’d think we’d have kept up with the pace of the rest of the country, given the sheer size of our population. Sadly, we have not.  

4. Law enforcement investigations role in determining fault. As was pointed out, this is a flawed process. Often times, law enforcement show up after the accident (thus not eye witnesses) and opine, “what must have happened.” So their bias and human errors can play a huge role. One thing I’ve also noted is language barriers can be a serious issue too, as non-English speakers often times can't provide their version of events.  

What also concerns me is that law enforcement’s determination of fault at that state is often misguided (I see errors in police reports often).  

Further, while intended to be or not, law enforcement determinations are often seen as legal advice for the victims of the accident. In fact, I’ve had cases that I’ve received positive results for clients where law enforcement directly told them they can't win under contributory negligence. I often times wonder how many people haven’t come to see me simply because law enforcement told them that they had no shot.

5. Victims who are potentially contributorily negligence can’t find lawyers. Sadly, I agree with this. Often times, personal injury firms (like mine) are small with limited resources working on a contingency basis. We are forced to assess cases to determine if we feel confident about being successful. Because of that, where there is a valid contributory negligence defense, we simply can’t help. We know how well settled this law is in Virginia. Until there’s a change in the law, this isn’t going to change.

6. Comparative negligence would breed lawsuits. This often-used argument of the insurance industry is repetitious. Look, there are “frivolous law suits.” But the sad thing is that those are the cases that get the most publicity (ie, suits against subway for the length of their subs). In reality, most cases are people who are legitimately injured by someone’s negligence, and they just want to be made whole and move on with their lives. Most of my clients tell me, “James, if we could just take back this accident, I’d forgoe all of this.” And I believe them.  

To be honest, Kojo, my thought is that if insurance companies played fair, and paid legitimate claims without litigating every possible defense, I (the personal injury attorney) wouldn’t (and shouldn’t) have a job. Because by me having to get involved in a case increases the litigation costs. In reality, insurance companies, by not paying valid claims, are making a financial decision that “it’s better to make them litigate it because they may just get tired and settle.” 

My last point, Kojo, and not necessarily related to contributory negligence, but insurance generally, is that consumers need to be made aware of Uninsured (or Underinsured) insurance coverage. It’s a policy that you buy with your auto insurance that protects you if you’re injured by a driver’s negligence, and they lack enough insurance to cover your claim.  

In Virginia, the insurance companies tell consumers they are “fully insured,” by selling them minimum policy coverage. Which in Virginia is $25,000.  While that may seem like a lot, if you’re injured severely, and need to tap into your UM/UIM policy, $25,000 is chump change, and most people are left holding the bag.

I truly think that you’d be doing the public a great service by telling them to actually look at their auto policies and see what coverage they have. “Fully insured” is something the insurance companies sale that often times falls short when injured people need protection the most.  

Thanks, and keep up the great work.

Sincerely,

 

James S. Abrenio 

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