Don't let insurance adjusters mislead you about the comparative negligence rule in New York State.

Don’t let insurance adjusters mislead you about the comparative negligence rule in New York State.

Welcome to the newest feature on our Ziff Law blogs, Questions & Answers.

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Q&A 1While we will answer questions about personal injury, medical malpractice and divorce law, our primary practice areas, we will also be glad to talk about car/motorcycle/truck insurance, medical bills, lost wages, property damage and any legal issue in the news.

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Today’s question is from a Twin Tiers resident who received misleading information from an insurance adjuster after a minor car accident.

Question: I was in a car accident yesterday evening. A woman failed to stop at a stop sign and pulled out in front of me, and I struck her vehicle on the front driver side.

I just spoke with my insurance adjuster and she indicated that New York State has a shared responsibility law, or something like that, and that the insurance adjusters determine who was at fault and how much fault each party has.

signThe officer at the scene indicated the woman driving the other vehicle was clearly at fault because she failed to stop at the stop sign and pulled out in front of me.

Why should I have to share responsibility in this accident? There was nothing I could do to avoid the accident. Fortunately, there were no injuries, but I still feel that since she was fully responsible for the accident, her insurance should pay for the repairs to my vehicle.

Why should I have to pay the deductible out of my pocket through my insurance and claim this on my insurance if I was not at fault?

Does New York State really have such a law of shared responsibility, even if one driver is clearly at fault?

Answer: N.Y. does have a comparative negligence rule, which basically means that each party is responsible for their percentage of fault. For instance, if the other driver was 100 percent at fault, the other driver is 100 percent responsible for all damages.

Jim Reed

Jim Reed

On the other hand, if a judge or jury determines that the other driver was 80 percent at fault and you were 20 percent at fault, the other driver (and their insurance company) would only have to pay 80 percent of your damages.

Because New York State is what is called a “pure” comparative negligence state, you can collect from the other driver in direct ratio to their percent of fault, even if they are less than 50 percent responsible. (However, there are some exceptions to this general rule, so I recommend consulting with a lawyer.)

This comparative negligence law makes sense and is logical, but the way in which the insurance carriers often try to apply this law to cases is horrible. Even in cases of absolutely clear liability, where the other driver is 100 percent at fault, the carriers will often try to claim that you were 20 percent, 30 percent, 50 percent at fault, and will refuse to pay 100 percent of your property damage. I have had them do this in rear-ender cases, drunken driving cases, and other clear cases, and they are betting that most people just want to get their property damage check and will not fight them on this.

My advice is to NOT let insurance companies get away with this nonsense. Go talk to a lawyer and see if they can help you with the insurance carrier. Sometimes just the threat of a possible lawsuit over the property damage or personal injury claim is enough to have the carriers not jerk you around regarding the property damage claim.

Depending on the amount of your property damage, you can also take the other driver to Small Claims Court, suing them for 100 percent of the damage they caused.

And finally, you can (and should) file a complaint with the New York State Department of Financial Services (used to be called the N.Y. Insurance Department) about the insurance company’s dirty tactics.

File a complaint here.

Good luck and I wish you the best in fighting the good fight!


James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
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