Anyone who has ever been in a vehicle accident knows that you always hope the other person will be at fault. You are told from practically the first day of a driver’s education class that you should never admit fault at the accident scene. What happens when you are at fault, though? Specifically, what happens when you have done something to contribute to the accident, but the other person is also at fault? Are you responsible for your own injuries and property damage? Are you accountable for the other person’s injuries and property damage? How does the insurance company or the court figure it all out? If you have been in an accident where the other party is at fault but you are concerned that you may have contributed or you are being alleged to have contributed to the accident, you may want to consult a New Hampshire car accident attorney at Friedman & Bresaw, PLLC to review your accident. Our experienced attorneys may be able to offer support and guidance regarding your legal rights and options or represent you in court if necessary. Call (603) 707-4800 to schedule your free consultation in our Meredith office.
What is Comparative Negligence?
In a vehicle accident, someone is always at fault. This means one of the drivers, or in rare cases another party, such as an employer or the vehicle manufacturer or mechanic, has taken an action or not taken an action that caused the accident. For example, a driver may run a red light, or their mechanic may have claimed to have repaired their brakes but did not, and the driver rear-ended another vehicle because their brakes did not work.
However, not every car accident is just one driver’s fault. Both drivers may be at fault. For example, one driver may run a red light, but the driver who is hit is speeding. In this case, both drivers are partially responsible, which means both were negligent. Comparative negligence is a law that considers that both drivers can be negligent and allows them to recover compensation anyway. However, this compensation is reduced by the percentage of fault assigned to the party. Additionally, there is pure comparative negligence and modified comparative negligence, which also determines how much compensation can be recovered when both parties are at fault.
Is Comparative Negligence the Same as Contributory Negligence?
While the definitions sound very similar, comparative negligence and contributory negligence differ. Both consider how much fault is assigned to each party in a vehicle accident, but they diverge after that.
Contributory Negligence
Contributory negligence is a strict law that does not allow compensation if a party bears any responsibility at all for the accident. Even if the party is only 1% responsible, that 1% is enough to bar them from receiving compensation. In states that have this law, it is critical that drivers do not acknowledge responsibility for the accident.
Comparative Negligence
Comparative negligence is less strict than contributory negligence. In comparative negligence, even when a party bears responsibility for an accident, they may be able to receive compensation. The amount of compensation and whether they can receive it depends on whether their state uses pure comparative or modified comparative negligence. New Hampshire uses modified comparative negligence.
Pure Comparative vs. Modified Comparative
Pure comparative negligence means that a party can receive compensation regardless of the amount of fault. For example, if Driver A is 99% responsible and Driver B is 1% responsible, Driver A can receive compensation from Driver B and Driver B can also receive compensation from Driver A.
N.H. Rev. Stat. §507:7-d is New Hampshire’s modified comparative negligence law. Modified comparative negligence means that as long as a party is not more than 50% responsible for the accident, they can receive compensation. In this case, if Driver A is 51% responsible, and Driver B is 49% responsible, Driver A cannot receive compensation, but Driver B can. However, the compensation they will receive will be reduced by their percentage of fault.
What Does the Reduction in Compensation Mean?
Modified comparative negligence means that any compensation received is reduced by the percentage of fault the individual was assigned in the accident. For example, if Driver A sues Driver B and is assigned 20% of the fault in the accident and awarded $100,000 in compensation, that $100,000 will be reduced by 20%, or $20,000, giving Driver A $80,000 in compensation.
This reduction means that the individual would be responsible for paying some of their damages, such as medical bills or vehicle repairs, out of their own pocket or through their own insurance. This is why it is critical to avoid admitting fault at the accident scene, and why individuals who believe they may have contributed to the accident or are being accused of contributing may want to consult with a personal injury attorney at Friedman & Bresaw, PLLC. We may be able to assist you in building a strong case that reduces or eliminates the fault on you and instead holds the other party responsible so you can receive the maximum compensation you deserve under the law.
How to Avoid Having Compensation Reduced for Fault
The most effective way to avoid having compensation reduced in comparative negligence is to prevent any fault in the accident. However, even if an individual does not bear any fault, the other party will still likely try to claim they do. Therefore, the next most effective way to avoid reduced compensation is to prove the lack of fault (or prove less fault than the other party claims) with substantial evidence.
Individuals will want to find evidence such as video footage, photos, witnesses, weather reports, road conditions, and police or other accident reports. An attorney may be able to assist by helping to find expert witnesses who can bolster the evidence, such as explaining how the weather and road conditions contributed to the accident and comparing the individual’s driving to the other driver’s to prove the other driver is at fault. Sometimes, medical records can help establish fault by showing that a specific injury could only have occurred under particular circumstances that may prove the other driver was at fault.
How Does Comparative Fault Affect Negotiating With Insurance Companies?
Insurance companies understand comparative fault quite well, and it is one of the factors when calculating a settlement. They do not want to pay out claims they do not have to, so they will seek to put the fault on anyone other than their insured. Insurance companies may try to shift the blame and exaggerate a victim’s role in the accident. They will try to exaggerate the victim’s role to inflate the victim’s fault beyond the 50% limit that allows them to avoid paying compensation.
Another tactic the insurance company may try is to exploit any uncertainties in cases where the fault is not apparent to try to make the victim’s fault larger. For example, suppose the victim claims ice on a bridge contributed, but the other driver denies there was ice and weather reports do not back up the claim. In that case, the insurance company may try to use video footage of other drivers to show that there was no ice.
How Long Do You Have to File a Claim?
N.H. Rev. Stat. §508:4 is the statute of limitations and provides car accident victims with three years from the date of the accident to file their claim. Many individuals attempt to negotiate and settle with the insurance company before they file their lawsuit. While they do not have to file their lawsuit while dealing with insurance, they must remain aware of the statute of limitations and when it will expire. If it expires, their claim can, and likely will be, barred, and they will receive no compensation.
Also worth noting is that if the victim waits too long and the statute of limitations expires while still negotiating with the insurance company, they may not receive any more settlement offers or those offers will be much less than any previous offers. Once the statute of limitations has expired and there is no longer the threat of a lawsuit, the insurance company has little to no reason to continue negotiating or to settle at all.
How Can a New Hampshire Car Accident Attorney Assist You?
When you have been involved in a car accident in New Hampshire, understanding the state’s laws when fault is assigned to both parties can be critical to maximizing any compensation you may seek. A New Hampshire car accident attorney with Friedman & Bresaw, PLLC, may be able to assist you with finding evidence and building a strong case that proves you were not at fault or reduces the amount of fault assigned to you so you can receive the maximum compensation you deserve under the state’s modified comparative negligence law. Call (603) 707-4800 to schedule your consultation for a free case review and find out how we may be able to support and represent you.
