NOT WEARING A SEAT BELT
Can Seriously Affect Your Auto Injury Claim
Even though seat belts are mandatory In West Virginia you can still pursue a personal injury claim for damages if you were not wearing a seat belt at the time of your automobile accident. However, failure to wear a seat belt can reduce the value of your case and will give the insurance company a weapon to use against you in court.
They will argue that wearing a seat belt would have prevented your serious injuries. The state of West Virginia agrees. According to WV law, you do bear some responsibility. Claims for medical damages may be reduced by 5% for failing to wear seat belts even if the other driver was clearly at fault in the accident.
Before you can pursue a liability claim against someone for your injuries, the cause of your injuries must have been primarily caused by their actions, not yours. Here is a case in point:
Let’s say you were injured in an car accident while you were traveling at 5 miles over the speed limit and not wearing a seat belt. Let’s also say the other driver was proven to be driving erratically and under the influence. You can still file a claim against him, however, an insurance company will try to argue the “seat belt defense” to minimize fault and reduce your claim.
Depending on the judge, the makeup of the jury, and the experience of your legal counsel, they might win and leave you will only a small percentage of what you deserve.
You might recall the famous case of Actor-comedian Tracy Morgan whose limousine was struck from behind by a Walmart company truck on the highway. It was found that the driver of the Walmart vehicle had been awake for more than 24 hours before the crash and his commute of 700 miles from his home in Georgia to work in Delaware was “unreasonable.” It was also alleged he fell asleep at the wheel.
Regardless, the company claimed Tracy and friends (one of whom died due to injuries sustained in the accident) were partly to blame for their injuries since they were not wearing seatbelts. Morgan himself spent weeks in rehab.
Wal-Mart’s attorneys claimed Morgan’s injuries were caused “in whole or in part” by his “failure to properly wear an appropriate available seatbelt restraint device,” which they said constitutes unreasonable conduct.
None of that matters if your attorney isn’t experienced in dealing with insurance companies. You don’t want to find yourself in court with an attorney who is inexperienced when facing high-powered corporate attorneys who are paid to ignore your pain and suffering.
A skilled personal injury attorney, like G. Wayne Van Bibber, will argue that a plaintiff’s failure to wear his or her seat belt did not attribute to the cause of the accident in any way. Failing to wear a seat belt might have made the plaintiff’s injuries worse, but it certainly did not help to cause the accident itself. Thus, failure to wear a seat belt cannot logically be considered comparative negligence.
WHAT IS COMPARATIVE FAULT
and How does it affect in West Virginia Auto Injury Claims
If you are injured in an accident as a result of someone else’s negligence, then you should be compensated. The principle seems simple, however accidents are not always black-and-white when it comes to determining fault and, in many cases, both parties share fault. When liability is split, what impact does that have on your ability to collect damage reparations? The answer lies in “comparative fault” laws.
There are three types of comparative fault legislation:
Comparative Fault, and
Slight / Gross Negligence Comparative Fault.
West Virginia law states that in most situations a defendant can only be liable for the percentage of the plaintiff’s damages attributed to that defendant’s conduct.
In cases in which a plaintiff is seeking damages for personal injury, property damage, or wrongful death, the jury allocates fault to parties, as well as nonparties, in direct proportion to that person or entity’s percentage of fault.
This means the plaintiff will be barred from recovery if he is found to be more than 50% at fault. This is the new standard since 2015 (House Bill 2002). Be sure to hire an experienced attorney like G. Wayne Van Bibber who makes it his job to learn how new laws affect his clients and the potential outcome of their cases.
COMPARATIVE NEGLIGENCE’S EFFECT ON YOUR CLAIM
Let’s say you accidentally rolled through a stop sign and were injured by a drunk driver who, because he was impaired, could not stop in time. You are hospitalized for a few days to recover from severe whiplash, and your car has been demolished.
Most would think the other driver would be entirely at fault since they were driving while intoxicated, which is socially reprehensible, not to mention highly illegal.
Not so fast! Since you rolled through a stop sign without coming to a complete stop, the accident is no longer entirely the other party’s fault. In fact, in this case, the investigators and adjustors say you are 25% at fault for the incident.
Your insurance company will then pursue the other driver’s insurance company for the costs of your medical bills, car replacement, and other expenses, minus the 25% for which you were responsible. That 25% will then be covered by your own policy (if you have one), up to its coverage limits. After this, any additional expenditures are your responsibility directly.
The percentage of your own fault (called “comparative fault”) will reduce your compensation by the same percentage of fault you contributed to causing the auto collision. Simply put, if you are found by a jury to have been 25% at fault in causing the auto collision, your compensation will be reduced by 25% of the total verdict.
Insurance adjusters do everything in their power to devise excuses why your alleged negligent conduct equaled or exceeded that of the individual or entity they insure. The end result will be you receiving little or nothing in settlement of your injury claim. This is why it is essential you have a skilled personal injury attorney like G. Wayne Van Bibber fighting to protect you and your family.
You can trust the full-service, statewide personal injury law firm who so many have trusted over the years: Law Offices of G. Wayne Van Bibber & Associates, PLLC in Hurricane. Our outstanding lawyers serve clients in greater Charleston, Teays Valley and throughout West Virginia.
If we can be of any assistance, please call our offices at (304) 757-3330 to speak with one of our attorneys.
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