Driver gesturing in disbelief at the damage in a car accident | Colombo Law

In West Virginia, comparative negligence is a major consideration in any personal injury claim. Negligence determines who is at fault and, therefore, who is liable for damages. If both the defendant and the plaintiff are partially responsible, who is entitled to compensation becomes more challenging.

West Virginia comparative negligence rules can be difficult to understand on your own. Defendants and insurance companies may also try to use the rules against you in an effort to avoid paying what you are owed.

A West Virginia personal injury lawyer can protect your rights and ensure that you are fairly compensated for your losses. Colombo Law has the experience and skill to advocate for you effectively.

For a FREE case review, call Colombo Law at 304-599-4229 today. Our personal injury lawyers serve clients throughout West Virginia from our office in Morgantown.

What Is Comparative Negligence?

Comparative negligence is a legal principle used to allocate responsibility for damages based on the degree various parties are deemed to be responsible for an incident resulting in injury. There are two types of comparative negligence to be aware of:

  • Under pure comparative negligence laws, an injured person may pursue compensation for damages even if they are 99% at fault.
  • Modified comparative negligence, meanwhile, sets a threshold for fault (usually 50% or 51%). If an injured person is determined to exceed this threshold, they cannot obtain compensation.

How Does Comparative Negligence Work in West Virginia?

West Virginia is a modified comparative negligence state. Plaintiffs can be no more than 50% responsible for an accident to be entitled to compensation.

If you are deemed to be 50% or less responsible, then you are able to pursue compensation for your total damages minus the percentage you were deemed liable. In other words, if you sustained $100,000 in damages but are ruled to be 20% responsible for the accident, you would only be eligible to recover $80,000 in compensation. 

How Is Comparative Negligence Determined?

Ultimately, comparative negligence is determined by the “trier of fact” (i.e., the judge or jury in a trial). However, West Virginia comparative negligence may also play into insurance negotiations before a case goes to trial.

For example: An insurance company may offer you less compensation than you think you deserve on the basis that you were partly at fault. The insurer may even place the majority of blame with you and deny you compensation altogether.

These arguments should not be taken at face value. Sometimes insurance companies try to partially blame plaintiffs for accidents to diminish their own insured’s liability. A West Virginia personal injury lawyer well-versed in the state’s comparative negligence rules will investigate thoroughly to ensure fault is allocated appropriately. Eyewitness statements, accident reports, and professional reconstruction of the accident can all help to establish fault accurately.

How Is Compensation Affected If You Are Found Partly At Fault?

Sometimes the evidence shows that the plaintiff contributed to the accident that led to their injuries. For example, say a distracted driver is the root cause of a car accident in which you were injured. The other motorist is cited for distracted driving, which reinforces your claim, but the authorities also determine that you were traveling in excess of the speed limit.

The distracted driver is found to shoulder the majority of the fault (say, 75%). However, your speeding is also determined to have been a factor (say, 25%).

In this situation, West Virginia comparative negligence dictates that you would only be able to recover 75% of the compensation you would have been due if the distracted driver was 100% at fault for the accident.

Countering Allegations of Comparative Fault

Comparative negligence provides the means to recover some recompense for an accident that is partly the fault of the plaintiff (compare it to the much more unforgiving contributory negligence standard used by other states). Unfortunately, insurance companies may use comparative negligence as a tactic for reducing—and even avoiding— their financial responsibility for an accident.

For example, if you delayed getting the appropriate medical attention after an accident and it made your injuries worse, which resulted in greater medical bills, then the insurance company may argue that you were partly responsible for the total cost of your damages. (Note: this is part of the reason you should never delay getting medical treatment following an accident.)

Insurance companies will do whatever they can to poke holes in your case and attribute as much responsibility to you as possible. Their ultimate goal is to minimize a potential payout, if not avoid a payout entirely.

While this may be an intimidating tactic, an experienced personal injury attorney will know how to keep the facts straight and ensure the negligent party is held fully responsible for the accident.

Contact a West Virginia Personal Injury Lawyer Today

Personal injury cases can get complicated quickly. What seemed like a simple matter of fault can turn into a complex argument around percentage of fault. It is not always clear in the moment how these calculations may ultimately affect your claim, which is why you should always be careful when communicating with insurance companies. They will do whatever they can to back you into a corner and use your words against you.

At Colombo Law, we are here to help. We are passionate advocates for West Virginians who have been injured due to the fault of another, and we are here to protect your rights now.

Speak to a personal injury lawyer for FREE today.

by Colombo Law
Last updated on - Originally published on