The laws of the Commonwealth of Pennsylvania have been enacted to provide that, even if found partially at fault, an injured party can seek the recovery of any damages resulting from the car accident. However, the amount of participation by the injured party and the negligent party will affect the amount allowed to be recovered by both.
The purpose of this blog is to explain the effect of Pennsylvania’s comparative negligence laws on personal injury claims.
The Role of Negligence in Personal Injury Claims
The definition of negligence is the error or misjudgment of a person causing loss or harm to another. The losses are compensable, and these losses extend to injury, damage to personal property, financial loss and the value placed upon the pain and suffering. The injured party has the right to seek the recovery of these losses in civil court.
There cannot be a personal injury claim without a negligent party.
The laws of Pennsylvania recognize that, in some instances, the injured party may have some contribution in the cause of the accident. In car accidents, all drivers have the same duty of care. They must drive safely and adhere to the rules of the road. All drivers are liable for the injuries they cause, and the levels of contribution in the accident can be anywhere from 0%-100%.
The Determination of Fault
It is both the investigators for the insurance companies and the courts that determine fault. This determination is based upon the evidence collected at the scene, photos, videos, witnesses and the accident report. This evidence will lead the investigators to assign fault to the reckless party, or to allocate fault between the drivers involved.
Negligence and Comparative Fault
Comparative negligence is applied when both drivers involved in the accident are found to have some contributory fault in the cause. By way of example in plain English, an injured party can bring suit against the negligent party. The injured party can recover damages if the negligent party is more than 50% responsible for the accident.
Let’s say the injured party was found to be 10% negligent for the accident, and the damage award was $100,000. The injured party’s recovery of the award will be reduced by 10% to correspond with the contributive portion of the negligence. Therefore, the injured party would recover $90,000, or 90% of the $100,000 award. The insurance company for the party found to be 90% responsible for the accident would pay out $90,000, not the full $100,000.
The Unintended Consequences of Comparative Negligence
While the intent of the law is to evaluate the evidence objectively, the unintended consequence of this is the insurance companies, its attorneys and the attorneys for the responsible party will aggressively seek to place as much of the blame and contributory negligence upon the injured party. The more blame that can be successfully allocated to the injured party, the less the insurance company would pay out, as shown in the example in the previous paragraph.
The Insurance Policy
Another factor to consider when determining the recovery of damages is the limitations within an insurance policy. In Pennsylvania, all motorists are required to have PIP coverage. The premise of PIP, or personal injury protection, is for each driver to file a claim with their respective carriers regardless of fault or the allocation of it.
This coverage type will prevent a motorist from seeking lost wages and medical expenses from the other driver involved in the accident.
Given the comparative fault allocation and the coverage within an insurance policy, it is imperative to seek the representation of an experienced personal injury attorney with expertise in defending any driver involved in a car accident. This expertise will lead to the aggressive defense of a position when the allocation of fault is being determined and to affect the best possible avenue to recover all damages.