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Accidents and Partial Fault – Liability and Insurance.

If I partly caused the accident can I still recover damages from the other driver?

Depending on the state you live in, you can probably recover damages from the other driver even if your negligent conduct contributed to the accident. Most states use a “comparative negligence” system. In some states the jury simply assigns a percentage of negligence to each driver and this governs the amount of recovery. For example, the other driver ran a red light but you were speeding and this preventing you from stopping in time to avoid the other car. The jury might find that the other driver was 75% responsible for the accident and you were 25%. The result would be that you would be entitled to recover 75% of your damages from the other driver. This is called “pure comparative negligence.”

Other states prohibit any recovery if you are 51% or more at fault. In the red light example, you would still be able to recover 75% of your damages. But if the percentages were reversed (the jury found you 75% at fault) you would recover nothing. Contrast this with a “pure comparative negligence” state where you would be able to recover 25% of your damages.

My passenger and I were both injured —can we both sue the other driver?

If you and your passenger both believe the other driver was at fault you can both sue that driver. However, except in the clearest of fault cases, you probably should not both have the same lawyer. This is because the other driver might point the finger at you as the cause of the accident. In a case of disputed liability it is needlessly risky for the passenger to sue only the other driver; a competent personal injury lawyer would counsel her to sue you as well. This way, if a jury disagrees with you and finds that your negligence or a combination of your and the other driver’s negligence caused the accident, your passenger will be able to recover 100% of her damages (either from you or from you and the other driver). Of course, if your passenger sues you as well as the other driver, one lawyer can’t represent both of you.

The other driver caused the accident but I was arrested for drunk driving – can I still recover damages?

Many states, California is one example, limit an intoxicated person’s ability to recover damages. Say you were stopped for a red light and another driver plowed into you from behind. There is no question that the other driver is entirely to blame for the accident. However, you were under the influence of alcohol, the officer who investigated the accident arrested you and you ultimately pled guilty to the offense. In California and states with similar laws, you could only recover you economic or “out-of-pocket” damages from the other driver. You would be barred from recovering general or “pain and suffering damages.”

To take the example further, say the accident caused painful, permanent, disfiguring facial scarring. Your medical bills were $8,000 but you missed little work and your lost earnings only amounted to $1,800. General damages for the type of scarring you suffered would probably be in the six-figure range but, because you were convicted (by pleading guilty) of drunk driving, all you will be able to recover is $9,800.

Keep in mind that many states that limit a drunk driver’s ability to recover damages (again, California is one example) require conviction (including a guilty or no contest plea) before the limitation applies. This means that, even is there is evidence that you were driving under the influence, your recovery will not be limited if there is no conviction.

The other driver caused the accident but I didn’t have any auto insurance – can I still recover damages?

A number of states punish uninsured motorists by limiting their ability to recover damages, even if they are completely fault-free in an accident. These laws, similar to drunk driver provisions, limit an uninsured driver to recovering her economic or “out-of-pocket” losses and bar her from recovering general or “pain and suffering” damages. These laws often apply to the uninsured driver and owner of the vehicle. Therefore, if a friend is driving you car with you as a passenger and you’re involved in an accident but have no insurance, neither one of you will be able to recover general damages.

These laws usually do not apply to anyone except the driver and owner, however. For instance, if you are killed in an accident with another driver and you have no insurance, your heirs will not be barred from recovering the general damages they suffer because of your death. This means they can recover damages for the loss of your “care, comfort and society” as well as any economic damages caused by their loss of your financial support.