Fault is one of the biggest, if not THE most critical element, in any car accident claim. The person at fault is the person whose negligence caused the accident, and that is the person who typically must pay for the damage caused by his or her negligence. If the circumstances surrounding your accident make it clear that one person was clearly at fault, then read no further! One of the related posts listed below should be your next stop. If, however, liability is not entirely clear or if there is shared fault, then fault is apportioned between the persons determined by the specifics of the law in your state (see below) on comparative or contributory negligence. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.
Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal circles as pure contributory negligence. Some states, such as Virginia, still follow this harsh rule.
Other states, such as Florida, have adopted a rule known as pure comparative fault, where if an injured person is partially at fault for causing his own injuries, his damages are reduced by his percentage of fault.
West Virginia has proportional comparative fault, which is somewhat of a mix between contributory negligence and pure comparative fault. In West Virginia, even if you are partially at fault for the accident, you can still recover damages as long as you are not more than 50% at fault for the damages (some states use 51%). If the person is under 50% at fault, then his recovery will be reduced by whatever percentage he contributed to the injuries (i.e., the accident).
Fault can be determined in several different ways. Initially, it will be up to the insurance adjustor to determine the proportion of fault. Obviously, a car accident victim should be very leery of accepting this determination. An experienced car accident attorney will have the knowledge, expertise and skill to negotiate with insurance adjustors at this stage for the best possible apportionment of fault, and hence the best possible settlement. Beyond this point, it will be up to a jury to determine fault, at which point there obviously must be a car accident attorney involved, preferably one who is experienced and skilled at convincing the jury that fault properly lies with the other party.
– John H. Bryan, West Virginia Car Accident Attorney.