Contributory Negligence in NC: why comparative won't raise insurance rates

NC Lawyers' Weekly has provided a great link to an article that was run in the Winston-Salem Journal about contributory negligence laws in North Carolina. 

Contrubutory Negligence is an issue that people don't know or care about, until they face the problem themselves.  Basically, in NC, even if you are hurt by someone else's negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery.  That's right.  Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue.  I highly recommend reading these articles.

I'll also add this to the mix.  One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation.  Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it's "an insurance company's dream "

"Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. "By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles," wrote Rodney Guthrie, Logan's attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. "In general, I'd say contributory negligence is an insurance company's dream," said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. "

Wreck victim faces being victimized by outdated law

"After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as "contributory negligence," an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. "Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover," Norris said.

'There is no lobby for the little people' in this state

"Just four states - North Carolina, Virginia, Alabama and Maryland - still hang on to the concept of contributory negligence, a relic from English Common Law. "

Don't believe hype that law would increase insurance rates

By Scott Sexton

JOURNAL COLUMNIST

Scott Sexton
Email	Bio

On its face, insurance law - specifically a legal concept called “contributory negligence” - is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates - the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau - an umbrella organization representing insurance companies - files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols

www.NicholsTrialLaw.com

Comments

[Amanda]

My family has recently run into this and it is quite scary to think that in our state of N.C. you better hope and pray nothing ever happens to you. How can this law still be on the books? My father is up against a huge company because he was injured on the job and it is documented in paper work that the company accepted fault for his injury, however from mediation we have learned that the "company" is pulling this law up on him despite the documentation that "they" are at fault. My father will most likely be left a feeble, wounded, unemployable man, that is guilty perhaps under this "contributory negligence" law because he SIMPLY showed up at work one day. People in N.C. and the other 3 states that still honor this law need to understand that YOU have NO RIGHTS if injured! What can we do to make this known to everyone before they become a victim? This is probably the most absurd law on the books because it removes your rights against individuals and or companies that cause injury or worse. This is a free ticket for mistreatment to the innocent.

[Dan]

It's a good law. If you want continuous law suits because some idiot wants to walk in the street infront of your car. Sue you for everthing you have because you even own something, get rid of this law. I say it keeps people liable/responsible for thier own actions.

[Skeet Long]

My 27 year old daughter was driving a car registered to me on 10-24-08 in Charlotte. She was in the center turning lane and a car to her right, crossed to lanes of traffic to make a left turn and my vehicle hit him. The police report said my daughter was "improperly using" the turning lane so the other insurance company decided my daughter contributed 10% to the accident and they have no responsibility to us. The same goes for my insurance carrier too, the other driver was 90% at fault but gets no protection from my insurance. You're right, this is an insurance company's dream.

We're just thankful no one was seriously injured or killed. My 4 year old grandaughter was in the back seat.

The real kicker is that I am responsible for the towing and storage fees on my totaled vehicle. Oh yeah, the medical bills for a trip to the emergency room are going to be arriving soon.

[KATE]

Nice article,and useful also.

-------------

kate

Great Auto Insurance

[Simon]

As to the above posted 11/01/08 comment by Skeet Long, we are in almost the exact same situation. Does it make any sense to try and take a situation like this to court on my own without and law or insurance experience? or is it going to be a waste of time?

[Betty Oliver]

My family had to deal with law last year. My brother was chased by a pitt bull out into the road and got hit by a car. My daddy went out into the road to help my brother. Quite a few cars pulled over to assist my daddy. While they were tending to my brother another car started to approach. My daddy and several other people started waving the car down. The car never stopped. It hit my daddy and continue and hit my brother again. The car finally stopped, but it was to late. My daddy and brother died. Of course we went after the second driver. Thought we had a good case. Not in NC. They said my Daddy was at fault for his own death because he did not move out of the road when he seen the other car comming. It was also a Saturday, and evidentally my daddy had drink a few beers. He was not drunk, but because of those two factors he contribute to his death. I do not think that any parent would of just moved and let a car run over thier child. I guess the insuranace companies dont care about what is right.

[Renee]

You say that..... but wait till it happens to you!

[Renee]

Dear Betty Oliver,

Rest assured that GOD knows and sees what these insurance co. are doing and they will not get away with what they are doing they think so but they aren't. Be incouraged that GOD knows what you are going through.

[Wilbert wiggins]

I myself have the same problem with a insurance co. they say i contributed 1% to the accident so that makes me negligence by nc law .