Every injury claim involves proving fault or responsibility. Sometimes fault is obvious, and sometimes not. What happens if the other party's insurance company thinks that you are at least partially at fault.
If the other insurance company thinks that you contributed to the collision or injury event, even if it's a little bit, then its arguing for "contributory negligence." Some people refer to this as "comparative fault." Essentially, the insurance company is pointing the finger back it you, claiming that you somehow contributed to the collision or injury event. This is a common defense in intersection collisions. Both parties have a responsibility to keep a proper lookout, and depending on the situation, each party has to yield to the right-of-way.
How It Works
Just because an insurance company or a defense attorney argues the you are partially at fault, does not mean they are correct. They have to prove your fault just as much as you have to prove the other party's fault. Many times, an insurance company or a defense attorney will argue that you are at least partially at fault, but the jury or the arbitration panel will not agree. If this happens, then the only remaining issue is whether the other party was at fault in causing your injuries. If they are, then the next question the jury tackles is how much compensation you are entitled to to make up for what you lost.
If, however, a defense attorney or insurance company successfully argues that you are at least partially at fault, then the jury or arbitration panel will have to assign a percentage of fault to you, and assign a percentage of fault to the other party. This is just like making a pie chart that allocates the relative fault between the parties.
The Oregon Rule
In Oregon, there is a limit to how much an injured person can be at fault and still recover for their losses. Generally, if a jury finds that you are partially at fault, it will assign a percentage of fault to you. Any compensation or damages that you prove are then reduced by that percentage of fault.
For example, if you make a claim and prove $100.00 in damages, but the jury finds that you are 20% at fault, then the net recovery on your claim will be $80.00. Your compensation is reduced by your percentage of fault. in this case, 20%.
However, Oregon imposes a limit on how much you can be at fault and still recover for your losses. In Oregon, if you are more than 50% at fault in causing the event that caused your injury, then you are not entitled to any compensation for your losses. This means that the other driver or defendant could be 48% or 49% responsible the collision, accident or other event that caused your injury, and not have to compensate you for your harms and losses.
The Washington Rule
Washington takes a more forgiving view. No matter how much a jury or an arbitration panel may find that you are at fault, you are still entitled to recover compensation for the harms you suffered, but it will be reduced by the percentage of your fault.
Let's take our $100.00 recovery example. You may prove that you are entitled to $100.00 in compensation. A jury may find that you are 80% at fault. Unlike the rule in Oregon, you would still be able to recover 20% of the harm you suffered as a result of the other party's negligence. Some people refer to this rule as "pure comparative fault."
Contributory or comparative fault issues add a whole new dimension to injury claims in Washington and Oregon.
There are tons of issues in proving fault. Check out this article for a different take.