In most jurisdictions, negligence is defined as the breach of a duty that causes damages, as a Las Vegas personal injury lawyer can explain. Every driver has a “duty” to drive in the manner that a reasonably safe driver would. For example, a driver must pay attention to traffic in front of them, and not drive too fast for conditions.
So if a person is driving in heavy stop and go traffic, they may need to drive slower than the speed limit to ensure that they will be able to slow or stop in time when traffic in front of them slows or stops. If a driver rear-ends and damages the car in front of them because they weren’t paying attention or were driving too fast, the elements of negligence will be met as there will then be damages that resulted from their breach of their duty. Note that medical injuries to a person’s body count as a type of damages, as does the pain and suffering that results from injury to the body.
Notably, some types of insurance will apply regardless of negligence, while other coverage depends on a consideration of negligence.
Collision and comprehensive coverage, along with medical payments coverage and car rental coverage generally does not depend on who was negligent. If you have collision coverage on your car and you drive it into a tree because you are texting on your phone, your insurance will pay to fix your car (minus the deductible). Likewise, in this case, you would still have the benefit of your medical payments coverage to pay your medical bills (up to the limits of coverage) and the benefit of your car rental insurance to put you in a rental car while your car would be in the shop.
But the most important insurance coverage for making a claim for injuries suffered an in accident, liability insurance and uninsured/underinsured motorist coverage, depends on whether someone else besides you was negligent.
Importantly, sometimes when an accident occurs, the accident was not really 100% the fault of one driver. Sometimes more than one person breached a duty to behave responsibly, and the fault will be apportioned amongst multiple people.
Different states treat mixed fault cases differently. Most states have either what is called “pure comparative fault” or “modified comparative fault” In a pure comparative fault state like California, you can recover whatever % of your damages were caused by someone else’s negligence. So if the accident was half your fault and half the other driver’s fault, you can only recover half your damages from the other driver/liability insurance, since the other half of your damages were your own fault.
However, the law in a modified comparative fault state like Nevada is that you cannot recover from the other driver/liability coverage if you were more at fault then them. Thus in a 2 car accident where both drivers were at fault, the other driver would have to be found at least 50% at fault in order for you to recover from them and/or their liability coverage.
Is it worth it to pursue a claim if you are partly at fault for the accident? Well, if the Plaintiff (the person injured in the accent looking to recover damages) is catastrophically injured and there is plenty of insurance, it will be worthwhile to proceed with the claim even if the Plaintiff is half or less at fault. But when the injury is minor, depending on Plaintiff’s health insurance, it may or may not be worthwhile to proceed with a claim if it is expected that the Plaintiff will be found 50% at fault. Why? Because if medical bills have to be paid in full due to lack of health insurance, and the Plaintiff is only getting half of his or her damages, there may not be enough money to pay everyone.
Passengers are almost never at fault (unless they did something to cause the accident, like giving their driver alcohol to drink before the crash) and in some states like Nevada they have the luxury of being able to collect from any partially at fault driver in a collision thanks to joint and several liability. Joint and several liability is a special legal doctrine making each and every person (and their liability insurer) who is even a tiny bit at fault liable for up to 100% of the injured not at fault person’s damages. This is great for the passengers when at least one the parties at fault has a large insurance policy or deep pockets.
Thanks to our friends and contributors from The Law Firm of Reed & Mansfield for their insight ingot negligence and personal injury cases.