Maybe you were distracted by your phone; maybe you were speeding without realizing it. Since Louisiana is a tort state, both you and your insurance company are now liable for damages. However, partial fault doesn’t stop you from recovering damages from the other driver.
Partial fault under Louisiana’s pure comparative negligence rules allows you to seek recovery from the other driver commensurate with their fault in the accident. A comparison is made to determine percentage of fault for the accident and financial liability is assigned accordingly.
How is Partial Fault Determined?
Police officers on the scene of an accident are often able to determine who is at fault. However, determining the percentage of fault attributable to each driver can be difficult. In those cases, insurance companies will investigate the accident and use their expertise to gather information and calculate the percentage of fault.
The insurance company and their insurance adjusters will use:
- police reports
- police citations
- maps and location
- damage to vehicles
- witness statements
- weather conditions
- medical records
- insurer algorithms
Unlike the rules of some states where partial fault prevents recovery of any sort, Louisiana‘s pure comparative negligence rules allow you to recover compensation even in a situation where you were mostly at fault for the accident. The amount you recover is affected by the degree of fault and ultimately dependent on the amount of insurance you have at the time of the accident.
Scenarios Where Percentage of Fault Must Be Determined
Some Louisiana cases are cut and dry. For example, rear-ending is almost always an at-fault scenario for the one who rear-ended. Insurance companies can use police-issued citations as evidence of fault as well.
However, many other situations are partial-fault scenarios.
You fail to signal your lane change and a speeding driver collides with your car.
You’re backing out of a space in a crowded parking lot where neither vehicle has the right-of-way and you hit another moving vehicle.
You’re momentarily distracted when your cell phone goes off, and, at the same time, a car comes out of nowhere and sideswipes you.
What To Do If You’re Partially At-Fault
If you feel that you may be partially at fault, don’t panic.
Be careful what you say to the police and to the other driver. Any description that signals that you were distracted or inattentive can be used by the other side to lay the blame solely at your feet.
It may be instinctual, but don't automatically apologize to the other driver or to law enforcement when they arrive on the scene. Avoid using phrases like “it was all my fault,” or “I'm so sorry,” or “I didn’t see you,” that can be viewed as admissions of guilt whether or not you intend them to be.
Have your insurance and registration paperwork ready. Take pictures if possible, gather information from the other driver, and get the names of witnesses, particularly if the police don’t arrive. At this point, you need to seriously consider hiring an experienced car accident lawyer to protect your interests.
Percentage of Liability in Car Accidents
If you are partially at fault in a car accident, that doesn’t mean you cannot recover damages.
Fault isn’t always immediately apparent. For example, in a wreck involving two merging vehicles, or a collision that occurs in a parking lot, it is difficult to assign the degree of fault, especially when stories conflict.
If your insurance company determines that you are 60% at fault, they can still insist the other driver’s insurance company cover 40% of the damages. In multi-car accidents, these agreements often occur because the degree of fault is consistently difficult to determine.
In most cases, vehicle damage is covered by insurance. Even if the other driver’s insurance pays out, they will look to get reimbursement from your own insurance company and may cause your insurance rates to go up. Insurance liability is determined on a case-by-case basis.
Despite the percentage of fault, if your injuries are severe, consulting with a Louisiana car accident lawyer is necessary in order to figure out the level and degree of damages that may be recoverable.
Unless you are provem to be the only one to blame for your injuries, you can seek to recover damages from the at-fault party. If you were injured in a car accident, you can still attempt to prove negligence on the part of the other driver. If fault on the part of the other driver is established, you could collect money damages by:
- Filing a claim under your own insurance policy
- Filing a claim through the other driver's insurance company
- Filing a lawsuit against the other driver who is at fault
Pain and Suffering
Even if you were partially at fault for a car accident, pain and suffering are damages you may be entitled to over and above your damages for vehicle repair, medical expenses, and lost wages.
There are two general categories:
- Physical pain and suffering from bodily injuries sustained in the car accident
- Mental pain and suffering for the trauma and anguish resulting from those same injuries
Any pain and suffering awards received are deemed to be non-economic. While many states do have maximum payouts, Louisiana law does not put a limit on pain and suffering damages awarded to those injured in automobile personal injury lawsuits.
Personal Injury Lawsuits
It is possible to be awarded more than the amount of damages recoverable under a car insurance policy. Of course, any recovery will be reduced in proportion to the degree or percentage of the fault or negligence attributable to any one driver.
Higher limits of car insurance coverage provide more protection against personal injury lawsuits being filed against you. If you own property or have other resources, an injured party can go after you personally and may succeed in obtaining a judgment against you. This could result in wage garnishment, attaching your life savings, liens on personal property, or even the equity in your home. Hire a car accident attorney and safeguard your rights.
Insurance Coverage Required
Louisiana utilizes a “no-pay, no-play” policy which bars any amount of recovery if you do not have minimum liability car insurance coverage. Under this law, if your vehicle is uninsured or underinsured, damages for personal injuries to yourself or to your vehicle are not allowed.
To drive legally in Louisiana the following minimum insurance coverages are required:
$15,000 minimum per person for bodily injury liability coverage
$30,000 minimum per accident for bodily injury liability coverage
$25,000 minimum for property damage liability coverage
$1,000 minimum recommended (but not required) for medical payments
Both uninsured and underinsured motorist coverage is recommended in the amount of $15,000 per person and $30,000 per accident. However, when you are initially purchasing your car insurance policy you may choose to opt-out of these additional coverage amounts.
Insurance Policy Limits
You cannot make an insurance company pay an amount that exceeds the policy limits selected.
If your claim exceeds the policy limits, you can always choose to sue the other driver directly, whether to seek damages above the policy limits that are available to you, or to recover your deductible. The probability of this type of lawsuit being successful hinges on determinations of degree of fault.
Even if you have collided with an uninsured driver, or if you are an uninsured driver yourself, an experienced Louisiana car accident lawyer can help you recover whatever is available to you under either one of those scenarios and others.
Different Types of Fault and Proof Needed
The fact that vehicle damage or an injury was sustained does not automatically guarantee a recovery. There are different levels of negligence when it comes to assigning fault and they each require different measures of proof.
Negligence Per Se
In some cases, a driver’s violation of a statute establishes a legal duty and a breach all at once. For example, drivers owe a duty of care to keep others safe on the road. If a truck runs a red light and injures you, your personal injury claim would be considered negligence per se.
Pure Comparative Negligence
As noted previously, even if you were 99% at fault for an accident, you may still recover nominal damages if you can prove the other driver was at least 1% responsible. Under comparative negligence law, the damage award is reduced by the percentage of your liability.
Conceivably, if a drunk driver is to blame for your car wreck, they can still make an injury claim against you if you had a broken taillight, and may even recover a minimal amount for damages. In addition to Louisiana, nearly one-third of states follow the pure comparative negligence rule, including New York, Florida, and California.
Pure Contributory Negligence
If your accident happens in Louisiana, consider yourself lucky. Some states follow a pure contributory negligence law that bars recovery even when the other driver is deemed to be 99% at fault. Only four states follow this legal rule: Maryland, North Carolina, Alabama, and Virginia, along with the District of Columbia.
Modified Comparative Negligence
The remaining majority of states follow what is called the modified comparative fault model. In this model, either the 50% bar rule or the 51% bar rule applies. Someone who is either 50 or 51 percent responsible for an accident may not recover any damages at all.
If you were partially at fault in a car accident, contact an experienced car collision attorney to protect your interests. Morris & Dewett Injury Lawyers will help you collect the recovery to which you are entitled under Louisiana's pure comparative negligence rules.
If you weren’t completely in the wrong, do not let an insurance company or opposing counsel reduce or limit your rights.