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Ashcraft & Gerel
LLP
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Car accident claims and lawsuits are probably the most common type of civil tort case filed by attorneys today. Except in those states where legislation has been passed doing away with fault as an issue ( no-fault laws ), car accident cases are litigated under general negligence principles. The lawyer for the plaintiff injured in a car accident files a lawsuit in court and is required to prove that the defendant was negligent, that the negligence was a proximate cause of the car accident, and that the car accident caused the plaintiff's injuries. Not only may the defendant's lawyer contest these issues, but under common law the defenses of contributory negligence and assumption of risk may also be raised in the accident lawsuit to defeat the liability portion of the auto accident claim. Injuries and damages may be attacked on the basis that they were not proximately caused by the car accident (causation) or on their severity.
Negligence has been defined as the doing of something that a reasonably prudent person would not do or the failure to do something that a reasonably prudent person would do under the same or similar circumstances. In other words, negligence can be either affirmative conduct or the failure to engage in affirmative conduct. In the context of a car crash, or in fact any type of motor vehicle wreck, whether it be a truck crash, a bus accident, a motorcycle accident, a bicycle accident or even a pedestrian struck by a car, this could mean a broad range of behavior, from a momentary lapse of attention (not looking straight ahead when one should be looking straight ahead) causing a driver to rearend another vehicle (the rearender is, perhaps, the most common of all types of car accidents), cross a center line, fail to yield the right of way, or run a stop sign or a red light, resulting in a collision, to affirmative conduct constituting unsafe driving, such as speeding, tailgating, or drunk driving, (doing something a reasonable driver shouldn't do, i.e., driving too fast, passing when unsafe to do so, following too closely or drinking alcohol followed by driving while impaired or intoxicated). The hypothetical "reasonable person" standard is used as the basis to judge human behavior. A reasonable person utilizes care and caution under circumstances in which it is foreseeable that the failure to do so would pose an unreasonable risk of injury or harm to others.
The Defense of Contributory Negligence:
The doctrine of contributory negligence is an affirmative defense to an automobile accident claim and is typically raised by a defense attorney in the Plaintiff's lawsuit in an effort to defeat the accident lawsuit. A plaintiff's own negligence which is a proximate cause of the automobile accident serves to defeat the plaintiff's claim, even if the defendant was also negligent. Under the common law doctrine of contributory negligence there is no comparison of the fault of a plaintiff and the fault of a defendant. Even where a defendant's negligence is, seemingly, much more serious, the plaintiff's own negligence in the car accident will defeat the claim. This rule has been criticized as unduly harsh by many attorneys and has given rise to various methods to escape from the effects of the doctrine, including the judicially created "last clear chance" doctrine and the doctrine of comparative negligence in some states. Maryland, the District of Columbia (D.C.) and Virginia (VA) are common law contributory negligence jurisdictions.
As noted, criticism by attorneys, judges and legal educators of the doctrine of contributory negligence as unduly harsh has led most states to modify the common law rule by enacting comparative negligence statutes. In these states, the fact finder (judge or jury) in a wreck lawsuit, rather than deny the plaintiff in a car accident case any recovery, is permitted to compare and apportion the negligence of the plaintiff against that of the defendant and adjust its damage award to the plaintiff according to the degree of contributory negligence of the plaintiff. For instance, assume a plaintiff and defendant are both found to have been driving negligently and that negligent driving caused a car crash. As between the plaintiff and defendant a jury in the accident lawsuit finds that the plaintiff's negligence contributed 40% to the car accident, and the defendant's negligence contributed 60% to the car accident. The jury would then decide upon the amount of injuries and damages sustained by the plaintiff and would reduce them by 40%, representing the plaintiff's percentage of contribution. Most states with comparative negligence statutes draw the line where the plaintiff's contribution is found to reach 50%. In these "modified comparative negligence" states, at the point where the plaintiff has been found to be equally as at fault in causing the motor vehicle accident as the defendant, recovery in the lawsuit is denied. However, there are some states with "pure comparative negligence" statutes, that permit a plaintiff to recover in the automobile accident lawsuit even if the plaintiff's own negligence was responsible for 95% of the auto accident. Such a plaintiff would recover only 5% of his or her injuries and damages.
The Defense of Assumption of Risk:
The doctrine of assumption of risk bars a claim for negligence when it can be shown that the plaintiff, by his or her conduct, voluntarily chose to encounter a known and specific danger and either fully appreciated or should have fully appreciated the risks posed by that conduct. It is rarely applicable in car accident claims, because it involves intentional, as opposed to negligent, behavior. However, since it is a defense at common law to a negligence claim, under the appropriate set of circumstances, attorneys for defendants may assert it in lawsuits arising out of auto accident claims.
Last Clear Chance - An Exception To Contributory Negligence:
As indicated above, the doctrine of last clear chance is a means of avoiding the effect of the doctrine of contributory negligence. A plaintiff who is contributorily negligent may nevertheless recover in the motor vehicle accident lawsuit if the plaintiff is in a situation of helpless peril, and thereafter the defendant had a fresh opportunity to avoid injury to the plaintiff and negligently failed to do so. Under these circumstances it is said that the defendant had the "last clear chance." Maryland has an unusual limitation on the application of last clear chance in car accident lawsuits and other negligence cases that renders this defense inapplicable in many cases.
The burden of proof in all negligence lawsuits, including auto accident claims, is on the plaintiff. This means that the plaintiff's lawyer must go forward first with the evidence at the trial of the accident lawsuit and must present evidence from which a fact finder (judge or jury) could reasonably infer that the defendant was negligent, that the defendant's negligence proximately caused the car accident and that the plaintiff's injuries are causally related to the car accident. This does not mean that the plaintiff's attorney must present absolute or positive proof or that the evidence presented by the attorney in the lawsuit must be conclusive or convincing. It also does not mean that the plaintiff must win. It only means that the plaintiff's attorney must present sufficient evidence in the accident lawsuit so that a reasonable judge or jury might conclude in favor of the plaintiff. This is called a prima facie case. The burden of proof on the issue of negligence can be met by testimony as simple as that of the plaintiff to the effect that he or she observed the defendant speeding or crossing the center line. Once the attorneys for the plaintiff have presented all of their evidence, the burden of proof in the lawsuit then shifts to the defendant's lawyer to present evidence of any affirmative defenses. If the defense attorneys contend the plaintiff was contributorily negligent, they have the burden of producing evidence from which a reasonable judge or jury might conclude that the plaintiff was contributorily negligent. Similar to the plaintiff's burden of proof on the issue of negligence, a defendant's burden of proof of contributory negligence need not be conclusive or convincing. It merely must permit a reasonable fact finder to decide in his or her favor based upon the evidence.
The standard of proof in most civil cases, including automobile accident cases, is called the "preponderance of the evidence " standard. It is less strict than the standard in criminal cases of proof "beyond a reasonable doubt ". The "preponderance of the evidence" standard has been defined to mean the more persuasive evidence or the evidence which is more likely than not to be true or accurate as to what happened on an issue. Judges frequently illustrate this standard for juries sitting in judgment of accident lawsuits by comparing it to the scale of justice. If one party's evidence is placed on one side of the scale and the other party's evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to sustain the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain their burden of proof based upon a "preponderance of the evidence".
On the surface, proximate cause appears to be one of the simplest concepts in negligence law, whereas, in reality, most attorneys consider it to be among the most difficult and vague of legal concepts. Over the centuries courts have defined it differently. Some attorneys contend that it is an example of where the judicial system applies a "We know it when we see it" test.
However, a basic definition is that the auto accident and injury must be shown to be the natural and probable result or consequence of the acts of negligence alleged by the attorneys in the lawsuit to have been committed. The attorney for the plaintiff must prove that any negligence of which the defendant is accused proximately caused the accident and his or her injuries. A defense attorney must at the same time prove that any contributory negligence of the plaintiff proximately caused the accident and any injuries of which the plaintiff complains. There may be more than one proximate cause of an auto accident. Two, three or even four acts of negligence by different people may concur to cause the same accident, yet each may be deemed to be a proximate cause of the auto accident.
In automobile accident claims, as in all negligence cases, the injured party may recover for physical pain and suffering, mental pain and suffering, medical and rehabilitative expenses, lost income, both past and future, permanent impairment and permanent disfigurement. Other incidental expenses proximately caused by the accident are also covered. In addition, the lawyer may join the spouse of the victim in the accident lawsuit to recover for damage to the marital relationship. This is called loss of consortium, and it is ordinarily a joint count in the Complaint (accident lawsuit document that begins a case) by both the husband and wife. Loss of consortium generally includes any negative effect upon the marital relationship proximately caused by the auto accident and can be defined as loss of the spouse's love, companionship, comfort, affection, society, solace or moral support, enjoyment of sexual relations, the ability to have children, and physical assistance in the operation and maintenance of the home. Loss of consortium can be either temporary or permanent.
No-fault, in its purest form, would entirely eliminate any concept of fault from the civil tort system when dealing with car accident claims and lawsuits. It would also eliminate any claim by the victim for non-economic losses, including physical and mental pain and suffering, permanent impairment, and disfigurement. Economic losses such as medical bills and lost income would be paid by a person's own auto insurance. This type of law is the insurance industry's dream, because it would increase profits by both substantially increasing premiums and by eliminating a major component of fair compensation for victims of automobile accidents, namely, recovery for non-economic losses. Fortunately, no state has adopted a pure no-fault system for car accident claims, and several have specifically rejected such proposals. Rather, several states have adopted modifications of pure no-fault. In some states, a party's own insurance pays for medical and lost income expenses, and the victim's lawyer cannot make a claim against the negligent driver for non-economic damages unless and until a threshold has been reached of a specific dollar amount. In other words, as an example, attorneys for the victim may not be permitted to sue for pain and suffering or permanent impairment unless $5,000.00 in medical expenses has been incurred. In other states, rather than impose a dollar amount as the threshold, the law imposes a permanency threshold, requiring that some serious impairment of body function, permanent serious disfigurement, or death occur before attorneys for the plaintiff may bring a suit to recover for non-economic damages. Some laws combine a dollar threshold with a permanency threshold on auto accident lawsuits. Variations on these themes exist in the laws of some states. The District of Columbia (D.C.) has such a law, but Maryland and Virginia do not. By and large, the no-fault system for car accident claims has successfully accomplished only one thing ... increasing the profits of the insurance industry. Savings have either not resulted or have not been passed on to consumers. The failure of no-fault systems, like other schemes foisted upon the public by an insurance industry which is poorly regulated and is exempt from anti-trust laws, is apparent. No state has switched from a tort system to a no-fault system since 1976. Connecticut, Georgia and Nevada have repealed no-fault and returned to a common law tort system for dealing with car accident lawsuits.
Automobile Accident Insurance:
Automobile accident insurance policies are divided into a number of different types of coverages:
The liability portion of a car insurance policy is specifically for defending and settling any claims or paying any judgments rendered against the insured driver in an auto negligence claim. There are two subcategories of liability insurance: bodily injury liability coverage and property damage liability coverage. When a plaintiff is injured in a car accident by the negligence of a defendant, assuming the plaintiff does not live in a jurisdiction that has a modified no-fault law that would limit the circumstances under which a car accident claim could be brought, attorneys for the plaintiff make a claim under the bodily injury liability coverage of the negligent defendant's car insurance policy. Liability coverage is not health insurance, and it is not designed to pay for medical bills of the plaintiff as they are incurred. It is designed for a one time settlement or payment for all of the plaintiff's causally related injuries and damages. On occasion, liability insurance carriers pay medical bills of unrepresented plaintiffs. They do this to keep the unrepresented plaintiff happy so that he or she will not seek an attorney to file an accident lawsuit. However, they always claim a credit toward any settlement, award, judgment or other recovery at the end of the claim.
Automobile accident law suits in most states must be filed against the negligent driver as the named defendant and the attorney filing the lawsuit may not also name the car insurance company as a defendant. Most states do not even permit a jury to hear or learn that there is car insurance coverage for the defendant. However, even though the insurance carrier is not named as a defendant, it has a duty to defend the claim by hiring an attorney to represent the negligent defendant. If a jury renders a verdict in the auto accident lawsuit in excess of the defendant's policy limit, the defendant is then personally liable out of his or her own assets for the excess of the verdict over his or her insurance policy limit. An "excess verdict" can be devastating to a defendant, often resulting in bankruptcy. For this reason, even though the negligent driver frequently is upset at being accused of negligence and frequently wants his or her day in court, it is strongly in the interests of the defendant to have his or her own insurance company settle the car accident claim within the policy limits, rather than proceed to trial in the accident lawsuit. On the other hand, the insurance company (and the attorney hired by the insurance company to defend the case) has an inherent conflict of interest with its insured, in that it always prefers to settle the claim for an amount under the insurance policy limit, even if the case is worth more than the policy limit. As a result of this conflict of interest and the devastating impact an excess verdict can have on an insured, the law imposes on insurance carriers a duty to their insureds to exercise good faith in seeking to settle claims within the policy limits of their insureds' policies. It is considered bad faith for a liability insurance carrier's lawyers to simply refuse to offer a $20,000 insurance policy limit in settlement to a victim whose damages likely will produce a verdict of $100,000 if the case goes to court, because the excess verdict in the lawsuit will make their own insured who they are supposed to be defending personally liable for the excess over his insurance coverage. Under these circumstances, after an excess verdict has been rendered, the lawyer for the plaintiff who has received the excess verdict may sue the insurance company for its bad faith failure to settle the claim within the policy limits.
Built in to many automobile insurance policies (also other types of insurance policies, including homeowners insurance) is a form of health and/or lost earnings insurance coverage called by various terms, including med-pay, personal injury protection (PIP), or economic loss protection benefits. This coverage is available to the insured driver and any passengers in the insured's vehicle for injuries sustained, regardless of the fault of the driver. It is important to note that the insurance policy of the negligent defendant does not pay med-pay or PIP benefits to the injured plaintiff in most situations. These benefits are limited to the driver of or passengers in the insured vehicle. The plaintiff looks to his own insurance policy or the policy on the vehicle in which he was a passenger for med-pay or PIP benefits. Pedestrians are often covered by PIP benefits on the car that strikes them.
Depending on the state, lost earnings may be covered by PIP benefits or economic loss protection benefits. Simple med-pay benefits ordinarily do not include lost earnings.
The amount of med-pay, PIP or economic loss protection benefits is determined by reference to the policy limit for this particular type of coverage, which may, in turn, be dictated by the law of the state in which the policy is issued. In MD (Maryland) all auto liability insurance policies must (unless waived) carry at least $2,500 in PIP benefits to cover medical bills, lost wages or any combination of the two. In DC (District of Columbia) PIP benefits generally are written in much larger amounts, although PIP itself is not mandatory in DC. VA (Virginia) does not have mandatory PIP or med pay, but most VA automobile insurance policies do carry med pay.
This type of benefit may be provided by the victim's own insurance policy and it protects the victim of a car accident against a negligent driver not having liability insurance coverage or having inadequate liability insurance coverage. In the event of a motor vehicle accident involving an uninsured but negligent defendant, the attorney for the victim makes a claim under his client's own uninsured motorist coverage and the victim's own insurance carrier then settles the claim or pays any judgment which may be rendered in the auto accident lawsuit. If a defendant has liability insurance, but the policy limit of the defendant's liability insurance is less than the uninsured motorist coverage of the victim under his or her own policy, the lawyer for the Plaintiff may make a claim under his client's own policy for what are called underinsured motorist benefits. A complicated body of case law has evolved dealing with this type of benefit, and each state has its own law dealing with the various issues which arise. There are significant differences in the rulings between the states on the same issues.
Automobile collision coverage provides for the repair or replacement of an insured's own vehicle after a car accident. Fault is not an issue. This is to be distinguished from property damage liability insurance coverage discussed above. The innocent victim of a car accident may have the choice to present a claim for the property damage under his own collision coverage or under the negligent defendant's property damage liability insurance coverage. Collision coverage ordinarily carries with it a deductible, whereas property damage liability insurance coverage does not. In an auto accident case, after a claim has been paid under collision coverage, the insurance carrier who paid the claim may proceed against the property damage liability insurance carrier for the negligent defendant to recover for the amount paid out. This is called subrogation. Between insurance carriers subrogation for collision coverage payments is most often handled by arbitration.
It is usually a misconception that victims of automobile accidents do not need lawyers. Until the victim of an automobile accident retains an attorney, the insurance adjuster knows that the person they are dealing with is not currently prepared to file a lawsuit in order to take his or her case to court. The insurance company is, therefore, unlikely to offer fair compensation knowing that an attorney is not involved. Ashcraft & Gerel's car accident lawyers represent a large number of automobile accident victims in Maryland, Virginia and the District of Columbia (D.C.). Our attorneys take great pride in limiting their representation to plaintiffs and in representing no insurance companies involved in these claims. Our car accident lawyers are committed to treating each car accident case, large or small, with the seriousness it deserves in order to assure that each of our clients receives the compensation that he or she deserves. If you have any questions or are interested in a free consultation with a car accident lawyer, please either email us or complete the form on our help page. Alternatively, we would be glad to have you telephone us. The telephone numbers of our offices in Maryland (MD), Virginia (VA) and the District of Columbia (DC) can be located by returning to our Homepage and clicking on the particular office you wish to call.
* Please also see our Web page on Maryland, Virginia & DC Injury & Accident Lawyers
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