As an example, suppose you are driving down a street with one lane in each direction separated by a broken yellow line, at a speed of 55 miles per hour. The posted speed limit is 45 miles per hour. A vehicle proceeding in the other direction makes a left turn directly in front of your vehicle and you cannot stop before hitting the front passenger side of the vehicle. You suffer a fractured ankle and are taken to the hospital by ambulance. You miss some work and your ankle heals pretty well over the next six months, but you still have some residual stiffness and occasional swelling. Assume that the total value of your medical expenses, lost income and pain and suffering is $80,000.
The person who turned left in front of you violated Vehicle Code §22107 by turning when it was not reasonably safe to do so since there was an approaching vehicle. Based on this evidence, a jury would find her negligent and liable. On the other hand, you were in violation of Vehicle Code §22348 by driving at a speed that was in excess of the posted speed limit. A jury would probably determine that this was also negligence and a contributing factor to the collision. The jury would likely decide that the other driver was 75% at fault and that you were 25% at fault. Under this scenario, your total damages are reduced by 25% and you are entitled to receive only $60,000 of your total damages of $80,000.
The same apportionment can be made if more than one other driver is partially responsible for causing a collision, but there is a small twist. Say you are stopped for a red light when you are hit from behind by one vehicle, then a short time later a second vehicle hits the car behind you, causing your vehicle to sustain a second impact through the middle car. Both impacts were severe. Your shoulder is hurt during the collisions and you develop chronic impingement pain afterwards that has to be corrected by arthroscopic surgery. Your medical bills are $30,000, your lost income is $5,000, and assume your pain and suffering has a value of $60,000. Each of the other drivers is determined to be 50% responsible for the impacts to your vehicle and your injuries.
In this scenario, the responsible parties are “jointly and severally” liable for all of your “economic damages.” That means that both parties are individually responsible for the entire amount of your medical bills and lost income, in this case $35,000. If one party was unable to pay all or part of this amount, the law requires that the other party pay the difference. However, with regard to “non-economic damages,” that is the pain and suffering component of your damages, each party would only be responsible for the percentage equal to their percentage of fault. In this scenario, each party would be responsible for paying 50% of the $60,000, or $30,000 each. If one party was unable to pay all or part of this amount, there would be no recourse against the other party or his insurance.
It goes without saying that in a comparative fault system, the insurance company for the other party will be looking for ways to attribute some or all of the fault to you since that will reduce the amount it is responsible for paying under its liability coverage. Some of the most common issues raised are failure to wear a seat belt, failure to use a turn signal and excessive speed. Rest assured that the liability adjuster will use any evidence available in the police report or through follow up investigation to justify a reduction in the money that is offered for settlement. If you believe that there will be any issues with liability or there will be a need for follow up investigation, it is a good idea to at least to consult with a qualified personal injury attorney.