How An Insurance Company Can Use Contributory Negligence To Deny or Defeat Your Personal Injury Claim.
In Maryland, contributory negligence can be a powerful tool at the disposal of an insurance company allowing it to defeat an otherwise valid personal injury claim. Unlike most states, Maryland has chosen to adhere to this vestige of the common law. Most other jurisdictions in the land have moved to a system of comparative fault. Under that framework, the relative degrees of responsibility in an accident are weighed. The individual who was least at fault can still recover from the individual who was more at fault. Not so in Maryland.
In Maryland, an even egregiously and horrifically injured plaintiff is barred from any recovery whatsoever if they contributed to the injury causing event in the slightest of fashions.
Obviously, the application of contributory negligence to a claim can be not only harsh but devastating, operating to preclude any financial recovery whatsoever. The facts giving rise to an insurance companies assertion of contributory negligence may be fairly obvious from the claim’s inception. As Attorney Eric T. Kirk will tell you. For example:
- an injured Plaintiff might have been cited for a violation of the motor vehicle laws in relation to the accident.
- an injured Plaintiff could be found to have been under the influence of alcohol or another substance at the time of the injury
- an injured Plaintiff could have been acting heedlessly or carelessly- failing to pay proper time and attention to their surroundings.
However, the insertion of the contributory negligence argument into a claim can be far more subtle. Skilled defense lawyers working for the insurance industry almost always allege in their response to documents filed with the court that the doctrine of contributory negligence should be considered as a defense to the claim.
In many cases, there is simply no evidence to support that allegation. In other cases, the litigation process can create a hook upon which the insurance company will seize in support of their contributory negligence defense. For example, if during deposition testimony or indeed during trial testimony, a plaintiff says something that suggests in even the slightest way that their attention might have been momentarily diverted from injury causing event before it happened, a skilled and seasoned defense attorney working for the insurance company may well argue that that momentary lapse of concentration and attention indeed constituted an act of contributory negligence barring any recovery whatsoever. In a comparative fault jurisdiction evidence that the plaintiff was somewhat negligent in the events leading up to an accident is damaging, and operated to diminish the recovery to the injured plaintiff. In Maryland evidence that the plaintiff was negligent in even the slightest matter is far more devastating.
