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Comparative Negligence
Proper investigation, documentation and negotiation of
files using the principles of comparative ne...
Four Types of Negligence
 Five (5) states still recognize the pure contributory negligence rule,
which says that a damage...
Negligence Defined
The omission to do something which a reasonable man,
guided by those ordinary considerations which ordi...
Investigating Liability
 Recreating an accurate picture of what happened.
 Insured statement
 Claimant statement
 All ...
Determination of Cause
 Primary determinations of liability:
 Did any party violate a state or local statute?
 Did this...
Determination of Cause (cont.)
 Secondary determinations of liability:
 Intervening Cause
 An independent cause which i...
Adjuster Responsibilities
 These concepts are a general overview;
 State laws do vary widely;
 The circumstances of any...
Duties of a Motorist
 Duty to Avoid an Accident
 A driver operating a vehicle on a public
highway does not have exclusiv...
Assured Clear Distance
 The application of this result requires a driver
to keep his car under such control that he can
s...
Same Direction of Travel
 When two or more cars are traveling in the same direction, the
lead car has the superior right ...
Opposite Direction of Travel
 Vehicles must be driven on the right-hand
side of the road and are required to stay to
the ...
Intersections
 Require greater duty of care than the open road.
 Maintain proper lookout
 Reducing speed
 Sounding hor...
Entering from a private way
 Vehicles on the highway have the right of way
 When a private way crosses a sidewalk, the
m...
Scene Diagrams
 Pictures of accident location from all
directions
 Measure the skid marks
 Look for intervening causes ...
Turns
 Right turns should be made as close to the right curb
as practicable.
 When making a left turn at an intersection...
Duty to Reduce Speed or Stop
 A motorist is required to exercise care and prudence in the
operation of the vehicle.
 The...
Skidding
 The skidding of a vehicle is not negligence or
evidence of negligence. In cases involving a skid,
the question ...
Sudden Emergency
 When a motorist is confronted with an emergency, he
must take whatever course of action is available to...
Obstruction of Vision
 Motorist owes a greater duty of care when
vision is obstructed.
 Potential negligence on parties ...
Passing
 A passing vehicle is under a duty to exercise
reasonable care to avoid an accident and to
observe all passing re...
Pedestrians
 Motorists and pedestrians have equal right to
use the highway.
 Pedestrians have increased rights in marked...
Passengers
 Passengers conduct determines their liability.
 Intoxication of the passenger does not necessarily constitut...
Liability Summary
 Adjuster must make a decision and document
in their claims system;
 Explanation of liability determin...
Joint and Several Liability
 Generally, this provides that a plaintiff may recover all
damages from any of the negligent ...
Liability Write Up
 Duties Owed
 Detail the duties owed by each party
 Primary considerations
 Secondary consideration...
Negotiating
 Customer needs to understand the law that is
applicable in your state.
 Liability law should be explained d...
Subrogation
 If the adjuster cannot resolve liability with the other
party then utilizing the assistance of Sequoia could...
Chris Tidball, SCLA, SSBB
P.O. Box 600845
Jacksonville, FL 32260
(904) 742-9031
chris@christidball.com
Comparative Negligence Marketing Presentation Linked
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Transcript of "Comparative Negligence Marketing Presentation Linked"

  1. 1. Comparative Negligence Proper investigation, documentation and negotiation of files using the principles of comparative negligence.
  2. 2. Four Types of Negligence  Five (5) states still recognize the pure contributory negligence rule, which says that a damaged party cannot recover any damages if he is even one (1) percent at fault.  Thirteen (13) states recognize the pure comparative fault rule, which allows a damaged party to recover even if it is 99 percent at fault, though the recovery is reduced by the damaged party's degree of fault.  Eleven (11) states follow the 50 percent bar rule, meaning a damaged party cannot recover if he is 50 percent or more at fault, but if he is 49 percent or less at fault, he can recover, though his recovery is reduced by his degree of fault.  Twenty-one (21) states follow the 51 percent bar rule, under which a damaged party cannot recover if he is 51 percent or more at fault, but can recover if he is 50 percent or less at fault. Again, the recovery would be reduced by degree of fault.
  3. 3. Negligence Defined The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. -Blacks Law Dictionary
  4. 4. Investigating Liability  Recreating an accurate picture of what happened.  Insured statement  Claimant statement  All occupant statements  All witness statements  Assessment of credibility  Examination of physical evidence  Police Report  Scene Investigation  Determination of cause of accident
  5. 5. Determination of Cause  Primary determinations of liability:  Did any party violate a state or local statute?  Did this violation have any bearing on the accident?  Was a tort committed?  Who is the tortfeasor?  Are their joint tortfeasors?  Are their empty chair defendant’s?  Were any parties responsible who were not involved in the accident?  What was the proximate cause?  That which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.
  6. 6. Determination of Cause (cont.)  Secondary determinations of liability:  Intervening Cause  An independent cause which intervenes between the original wrongful act or omission and the injury, which turns aside the natural sequence of events and produces a result which would not otherwise have followed and which could not have been reasonably anticipated.  Last Clear Chance  Did the part with the last clear chance to avoid the accident do so? Are they liable for their failure to act on this chance?  Attractive Nuisance  Was the instrumentality maintained in such a condition that it was dangerous and this danger was known.  Rescue Doctrine  One who is injured in a voluntary attempt to rescue a person whose life is imperiled by the ngeligence of another, is entitled to recovery from the negligent person.  Assumption of Risk  The ability to reasonably anticipate if one’s actions may result on harm or injury.
  7. 7. Adjuster Responsibilities  These concepts are a general overview;  State laws do vary widely;  The circumstances of any accident are unique and it is imperative that the adjuster address each and every potential duty owed and breached by all potential parties to the loss;  Adjusters must understand nuances within their specific venue and apply these concepts to that venue.
  8. 8. Duties of a Motorist  Duty to Avoid an Accident  A driver operating a vehicle on a public highway does not have exclusive right to use the road. The duty of care imposed upon the motorist requires the exercise of reasonable care and caution for the rights and safety of others using the highway. This duty is owed to the operators and occupants of other vehicles on the highway, occupants of the operator’s own car and pedestrians, as well as to owners of property either on the highway or adjacent to it.
  9. 9. Assured Clear Distance  The application of this result requires a driver to keep his car under such control that he can stop within the distance which he can clearly see, should such a stop be necessary to avoid an accident.
  10. 10. Same Direction of Travel  When two or more cars are traveling in the same direction, the lead car has the superior right of way. The driver, however, must exercise care for the safety of the occupants of the cars following him by: 1) Giving timely notice of stop or reduction in speed. 2) Giving notice of a turn as well as a chance in lanes.  The driver of the lagging vehicle is also charged with the duty of exercising reasonable care with respect to the lead vehicle by: 1) Being prepared to avoid danger in case of any movement on the part of the lead vehicle which is properly signaled. 2) Following other cars at a reasonably safe distance.
  11. 11. Opposite Direction of Travel  Vehicles must be driven on the right-hand side of the road and are required to stay to the right of the center line. When a collision occurs on the wrong side of the road, a presumption of negligence arises against the driver of the vehicle who is on the wrong side.
  12. 12. Intersections  Require greater duty of care than the open road.  Maintain proper lookout  Reducing speed  Sounding horn if necessary  Controlled intersection  Duty to obey traffic signals  Yield right of way where required  Yield to pedestrians in crosswalks with a green light  Uncontrolled intersection  The motorist who enters first has the right of way  Vehicles arriving simultaneously shall give the right of way to the vehicle to their right.
  13. 13. Entering from a private way  Vehicles on the highway have the right of way  When a private way crosses a sidewalk, the motorist must stop before driving on the sidewalk. Pedestrians on the sidewalk have an absolute right of way. Failure to yield, resulting in injury to a pedestrian is negligence.
  14. 14. Scene Diagrams  Pictures of accident location from all directions  Measure the skid marks  Look for intervening causes (shrubs, signs, debris)  Canvass for witnesses
  15. 15. Turns  Right turns should be made as close to the right curb as practicable.  When making a left turn at an intersection the motorist is obliged to exercise a high degree of care and to seek an opportune and safe time to turn.  Once in the intersection the motorist is required to yield the right of way to vehicles approaching from the opposite direction.  However, where a drive has proceeded fare enough into the intersection to have “occupied” it, other vehicles approaching from the opposite direction must yield the right of way.
  16. 16. Duty to Reduce Speed or Stop  A motorist is required to exercise care and prudence in the operation of the vehicle.  The motorist may be obligated to reduce speed or stop when:  The road or weather conditions are such that it is hazardous to drive at a normal speed. The fact that the motorist was driving at a speed within the posted limits will never exonerate/excuse the motorist from the duty to exercise appropriate care.  Another motorist on the highway is in a position of danger or peril.  The windshield clouds or ices to the point that the motorist cannot see.  A motorist blinded by headlights from an approaching vehicle. If an accident should occur, the motorist whose lights caused the blindness is negligent and did contribute to the accident.
  17. 17. Skidding  The skidding of a vehicle is not negligence or evidence of negligence. In cases involving a skid, the question of negligence will depend upon the operator’s conduct in operating the vehicle.
  18. 18. Sudden Emergency  When a motorist is confronted with an emergency, he must take whatever course of action is available to avoid an accident.  The actions taken may even include violation of the rules of the road. The violation will not constitute negligence if the following evidence is produced:  The violation was justified under the circumstances.  The motorist’s failure to exercise care did not create the emergency.  The motorist exercised reasonable care in facing the emergency.  Note that this defense is not available to the motorist who creates the emergency.
  19. 19. Obstruction of Vision  Motorist owes a greater duty of care when vision is obstructed.  Potential negligence on parties who caused the obstruction.
  20. 20. Passing  A passing vehicle is under a duty to exercise reasonable care to avoid an accident and to observe all passing regulations.  Failure of a motorist to comply is evidence of negligence.  A motorist being passed must give way to the passing vehicle and not increase his speed until completely passed by the overtaking vehicle.
  21. 21. Pedestrians  Motorists and pedestrians have equal right to use the highway.  Pedestrians have increased rights in marked crosswalks and with signals.  Pedestrians can be liable for their actions (i.e. dart-outs).
  22. 22. Passengers  Passengers conduct determines their liability.  Intoxication of the passenger does not necessarily constitute comparative negligence. However, factors such as assumption of risk should be considered.  Intoxication of the driver may result in comparative negligence on the passenger if he knew of the driver’s condition.  Duty to warn of danger would apply in situations where the passenger knew that the driver is not competent to operate the vehicle.  Riding in a dangerous position may result in negligence on the passenger.  Interference with the operation of a vehicle.  Vehicle defects known to the passenger.
  23. 23. Liability Summary  Adjuster must make a decision and document in their claims system;  Explanation of liability determination must be clear enough for an independent third party to understand the rationale;  Liability roundtables should occur in branches on a weekly basis where difficult situations can be discussed.
  24. 24. Joint and Several Liability  Generally, this provides that a plaintiff may recover all damages from any of the negligent defendants regardless of their individual share of the liability.  “Deep Pocket Rule.”  Wide variations in the application state to state, including some states in which joint and several has been abolished or limited to portions of a claim, such as economic damages.  Adjusters are responsible for understanding their jurisdiction. J & S Liability can have a significant impact on the resolution strategy.
  25. 25. Liability Write Up  Duties Owed  Detail the duties owed by each party  Primary considerations  Secondary considerations  Duties Breached  Detail the duties breached by each party  Primary duties  Secondary duties
  26. 26. Negotiating  Customer needs to understand the law that is applicable in your state.  Liability law should be explained during first contact.  Customer may opt to go through own carrier if there is a chance for comparative.  Don’t leverage the PD with the BI.  Don’t take the path of least resistance.
  27. 27. Subrogation  If the adjuster cannot resolve liability with the other party then utilizing the assistance of Sequoia could be considered;  Filing  Against Carrier  Against UM  Inter-Company Arbitration  Asset Checks;  Expertise- Over 60 years of combined experience amongst the principals;  Unparralled results;  Immediate bottom line impact.
  28. 28. Chris Tidball, SCLA, SSBB P.O. Box 600845 Jacksonville, FL 32260 (904) 742-9031 chris@christidball.com
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