Auto insurance companies often deny personal injury claims or offer to pay only a small settlement on the basis that the accident was partially or completely caused by the negligence of the person making the claim. Let’s assume for example that Susan was driving down the street when Joe suddenly pulled out of a private drive directly into the path of Susan’s oncoming car which was just a few feet away and the vehicles collided, causing her to sustain serious injuries. She makes a personal injury claim against Joe’s insurance company because Joe got a ticket for failing to yield the right-of-way and she believes the accident was clearly his fault. Joe’s insurance company may take the position that the accident was completely or partially Susan’s fault because Joe says she was driving too fast and failed to timely apply her brakes. (Insurance companies often disregard the investigating police officer’s opinion as to fault since the officer did not witness the accident.) The insurance company may deny Susan’s claim outright or it may offer to pay only a small fraction of her damages.
Under Texas law the amount a person is entitled to recover when they are injured by another person’s negligence is reduced by the injured person’s percentage of responsibility. For example, if Susan’s damages (medical bills, pain and suffering, lost wages, etc.) total $100,000 and she was 25% at fault then her recoverable damages will be reduced by 25%. So she will be entitled to recover $75,000 from Joe’s insurance company. If she was 40% at fault then she will be entitled to $60,000. However, if she was 51% at fault or more then she will be barred from recovering anything and will receive zero.
Contributory negligence is only one defense that insurance companies may assert in denying personal injury claims or offering small amounts to settle. There are several other defenses they may try to claim. A board certified personal injury attorney is often able negotiate these issues and reach a mutually agreeable settlement with an insurance company. However, sometimes settlement is not possible and it becomes necessary to file a lawsuit. A jury then decides these issues.