Posted By Alan Sackrin on August 19, 2014
Last Update: 12/15/16
As we discussed in last week’s post, fault is one of the key questions in any Florida accident, from a car crash to a slip and fall injury.
How blame is placed in an accident can be complicated. The offending party is always going to be ready to point the finger at the injured party because if it’s determined that the accident was the injured party’s fault, then he/she has no claim against anyone else for damages. If that happens, the injured party must then look to their own insurance policies (collision coverage, etc.) as the only source of coverage for their injury claim and property loss.
However, if an injured party can prove that under Florida law “fault” lies with someone else, then the other party’s insurance coverage will be responsible to pay the injured party’s claims.
Placing Blame for Your Florida Claim
Blame isn’t decided as all-or-nothing in Florida. In Florida, “contributory negligence” law decides how blame is allocated among the parties involved in an accident. (If it is determined that no party is at fault, then the case has little if any value. Even if you are seriously injured, there will be no bodily injury claim to pursue because legally there is no “fault” upon which to base your claim.) Therefore, the question of how fault is allocated in Florida is very important for anyone injured in an accident. See, Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), and Nash v. Wells Fargo Services, Inc., 678 So.2d 1262 (Fla. 1996).
Contributory Negligence and Fault Issue: Calculating Blame
Florida has developed a “pure comparative fault” system to determine blame in an accident. (See Florida Statute 768.81.)
How does this work?
Comparisons are made between those involved in the incident and then percentages are applied to each party.
Here’s an example:
Joe and Mary are in a traffic accident in downtown Hallandale, here in Broward County. Joe was hurt in the accident and had to be taken to the hospital for treatment. Mary didn’t suffer severe injuries in the crash.
Accident experts review the crash site, study photos of the wreck, read the police reports, talk to witnesses, etc., and determine that Joe was 80% at fault for the accident because he was speeding at the time.
They also determine that Mary was 20% at fault for the crash because she failed to yield.
Joe’s total damages come to $200,000.00.
Joe can look to Mary for $200,000 – 80%(200,000) = $40,000 which is Mary’s percentage of fault.
Fault as a Fact Question: Importance of Expert Analysis of Your Accident
Obviously, applying the percentages is easy enough once blame has been determined. Thus, who is at fault can be the main issue in an accident case which is usually determined by a jury. However, once that determination is made most of these cases boil down to a math question – it’s just a matter of applying percentages to the total amount of damages.
So, the real issue becomes how those percentages are determined. Defense lawyers and insurance adjusters are always ready to low-ball numbers and skew things so that their claimant has the least fault possible in the claim.
Plaintiff’s injury lawyers understand the strategies used by insurance companies to keep those fault percentages low. Accident reconstruction experts can be particularly helpful in understanding what happened and why an accident occurred. Investigators can find historical information that can be invaluable: for example, there is a history of wrecks at an intersection because of a blind spot created by the sun or the other driver’s car has been the subject of a recall because of a major parts failure.
When you have been injured in an accident in Florida, the other party to the accident (their insurance company) will be looking to place as much blame on you as he/she can, because it lessens his/her financial liability under Florida’s contributory negligence laws.
What Should You Do?
A good piece of advice if you have been harmed in an accident, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.