Car accidents can be stressful, scary, and overwhelming, particularly if there are serious injuries involved. The situation can become even more stressful if you realize that you may be partly at fault for causing the accident. While other states follow comparative negligence laws, which allow you to recover damages for your losses, minus the percentage of your share of liability, Virginia is one of the few states that follow the strict “contributory negligence” rule. Depending on the circumstances, you could be prohibited from recovering any damages if you are partly responsible for causing a car accident in Virginia. An experienced car accident lawyer understands the complexities of Virginia’s contributory negligence rule and will gather the evidence necessary to protect your rights and secure the financial compensation you deserve.
What Is Contributory Negligence in Virginia?
Most states follow the comparative negligence rule, which allows an injured person to recover damages even if they were partly at fault for causing the accident. However, the court reduces their total damages by the percentage of their liability. Virginia follows the strict “contributory negligence” rule. Under that system, if you are found to be even 1% at fault, you may be prohibited from recovering any damages. This can be financially devastating if you suffered serious injuries; you are responsible for paying your medical expenses and other losses associated with your injuries.
How Do Insurance Companies Use Contributory Negligence to Deny Claims?
Insurance companies will use contributory negligence as a reason to deny a claim by arguing that an injured person’s own actions contributed to the crash. The following are examples of evidence insurance companies will use to argue contributory negligence as a reason to deny your claim:
- Speeding. The insurance adjuster may argue that you were exceeding the speed limit, or driving too fast for the current conditions.
- Failure to keep a proper lookout. The insurer may claim that you should have seen the other vehicle and reacted sooner.
- Following too closely. In a rear-end accident, or a collision that occurred in stop-and-go traffic, the insurer may claim that you were following the vehicle in front of you too closely.
- Improper lane changes. The insurer may argue that your lane change maneuver contributed to the crash.
- Failure to yield. All motorists have a duty to yield to the right of way. If you failed to do so, the insurer may claim that this contributed to the accident.
- Distracted driving. If you were texting, talking on the phone, or engaging in any other behaviors that took your attention away from the road, the insurer may claim that your distracted driving contributed to the accident.
- Ignored a traffic signal. The insurer may try to deny your claim if you ran through a stop sign, drove through a red light, or ignored any other traffic signal or sign.
Are There Exceptions to Virginia’s Contributory Negligence Rule?
While the strict contributory negligence rule makes it difficult to recover damages if you are found to be even slightly responsible for causing the accident, there are situations where the rule may not prevent you from recovering damages, including the following:
- Last Clear Chance Doctrine. This is the most important exception that can sometimes allow an injured person to recover damages, even if that person was partly at fault. Under the Last Clear Chance Doctrine, the main issue that needs to be addressed is who had the final reasonable opportunity to avoid the accident. The Virginia Supreme Court recognizes the following two situations:
– The helpless plaintiff. The injured person negligently placed themselves in danger but was physically unable to escape from it. The defendant may be responsible if the defendant saw, or should have seen, the person in time to avoid the accident through reasonable care.
– The inattentive plaintiff. The injured person could physically have escaped the danger, but did not realize they were in danger. In this situation, the defendant generally must have actually seen the plaintiff and realized, or should have realized, the danger in time to prevent the accident. - The court determines that the plaintiff’s conduct was not a proximate cause of the injury. Contributory negligence requires more than simply showing that the plaintiff did something careless. The carelessness must have contributed to causing the accident or injury.
- A jury may determine whether the plaintiff was contributorily negligent. After reviewing the facts, evidence, and timing of the accident, a jury may determine that the plaintiff was not at all responsible for causing the accident.
Common Fault Arguments After Virginia Beach Car Accidents
Insurance companies will resort to a range of tactics to avoid paying a large settlement. If both motorists share liability for causing a car accident, Virginia’s strict contributory negligence laws give insurance companies an advantage. The following are examples of common arguments insurers will use to demonstrate negligence:
- You were speeding or driving too fast. The insurer may argue that you were driving too fast for traffic, weather, road conditions, or beach-area conditions and that your speed contributed to the crash.
- You were tailgating or following too closely. In a rear-end collision, an insurer may claim you were too close to the vehicle ahead or failed to leave enough stopping distance.
- You failed to keep a proper lookout. The insurance company may argue that you should have seen the other vehicle, pedestrian, cyclist, obstruction, or changing traffic conditions earlier.
- You failed to anticipate the crash. This is particularly important under Virginia’s contributory negligence rules. An insurer may argue that you had enough time to brake, swerve, slow down, or otherwise avoid the collision. Virginia courts recognize failure to act when a driver had an opportunity to see and avoid a danger as a potential contributory-negligence issue.
- You failed to yield. This argument may arise at intersections, merge lanes, roundabouts, crosswalks, and when entering or leaving parking areas where you did not yield to the right of way.
- You made an unsafe lane change. In Virginia Beach, insurers may closely examine lane-change accidents and argue that the injured driver moved into another lane without making sure it was clear.
- You were distracted. An insurer might point to cellphone use, adjusting the radio, eating, talking with passengers, or another alleged distraction.
- You did not use reasonable care because of the weather. Rain, flooding, fog, glare, strong winds, or other conditions can become part of the insurer’s argument that you should have slowed down or driven differently.
How Can You Protect Your Claim if Fault Is Disputed?
If fault is disputed after a car accident, you must take the following steps to ensure that your claim is protected and you recover the damages to which you are entitled:
- Seek immediate medical treatment. Keep records of appointments, diagnoses, treatment, medications, bills, and how the injuries affect your daily activities.
- Take photos of your injuries, the damage to your vehicle, skid marks or debris, and any other evidence that can help support your claim.
- Get statements from witnesses and ask for their contact information.
- Get a copy of the accident report. Keep in mind, however, that the investigating officer’s accident report generally cannot be used as evidence at trial to establish fault. Virginia law specifically restricts the use of these reports in civil and criminal trials.
- Do not admit fault. Be truthful, but avoid saying anything that could be interpreted as an apology, as this can be used against you in your claim.
- Contact a car accident lawyer. An experienced car accident lawyer can investigate the evidence and identify arguments that may not be apparent from the insurance company’s version of events.
How a Virginia Beach Car Accident Lawyer Can Help
The following are examples of how an experienced car accident lawyer can assist you with your claim:
- Investigate how the crash happened
- Fight disputed fault
- Communicate with the insurance company
- Identify all available insurance coverage
- Calculate the full value of your losses
- Protect you from settling too early
- Prepare the case for court if necessary
- Look for insurance bad-faith issues when appropriate
- Negotiate the best possible settlement outcome
Frequently Asked Questions (FAQs):
What evidence do I need to prove fault after a car accident?
Effective evidence includes police reports, witness statements, photographs from the accident scene, medical records, and an accident reconstructionist report, if necessary.
How long do I have to file a claim after a car accident?
In Virginia, you have two years from the date of the accident to file a claim. If you miss the deadline, your claim will likely be denied, and you will be unable to recover any damages.
Should I accept an insurance settlement if the insurer says I share fault?
It is important to understand how the insurer calculated the offer and how fault was determined before accepting a settlement offer. Your car accident lawyer can review the offer and recommend the best course of action.
An Experienced Virginia Beach Car Accident Lawyer at Anchor Legal ® Represents Victims of Car Accidents and Gets Them on the Road to Recovery
If you were injured in a car accident and you were partially at fault, it is in your best interest to contact a Virginia Beach car accident lawyer at Anchor Legal ® as soon as possible. We will protect your legal rights, assist you with the claims process, and recommend the most effective strategy for recovering the financial compensation you deserve. For a free consultation, call today at 757-LAW-0000 or contact us online. Located in Virginia Beach, Virginia, we proudly serve clients in the surrounding areas.