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The Insurance Corner
Facts About Negligent Concepts
 About Dan Baldyga
Dan Baldyga has a lifetime of experience in the field of motor vehicle accidents, personal injury and compensation.
More about Dan
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Personal Injury Settlement Considerations (Part Two)
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  By Dan Baldyga

How the motor vehicle accident liability system actually works, in the world of insurance claims, is a joke because what the law is supposed to accomplish has little to do with reality. That said; let's take a look at some of the concepts and then the facts.

CONCEPT: Negligence, for the purpose of a motor vehicle accident insurance claim settlement, is simple: The motorist held at fault for an accident did what he or she should not have done, resulting in property and/or personal injury ("damages") to another.

The concept of "negligence" is based on a legal doctrine called the "Reasonable Man's" doctrine under law. By that doctrine, it's held that a "reasonable man" has an obligation to exercise a certain degree of care and negligence and when he fails to uphold that duty (and if it should result in harm or injury to another, or his property) it's a legitimate reason for that party to be "made whole" again. That is, to be compensated with money for "damages", by he or she that caused them. In short, the term "negligent", as applied to motor vehicle accident claim cases, refers to a level of conduct and/or behavior that fall's below the acceptable standard established by law for the protection of others against risk or harm.

THE FACTS ARE: If this concept were strictly adhered to our courts would be swamped with cases. For example, the questionable liability intersection accident where there are no witness's. The insured is a 70 year old, scraggly bearded, shoddy recluse who rarely leaves his cabin in the woods, obviously doesn't like people and rarely smiles. He's never been in an accident. The claimant is an attractive, 40 year old, well liked lady, who works full time as a secretary in the local mayor's office, to help pay for the expenses of her beautiful daughter who is attending a local college. The old codger is telling the truth when he says he was driving under the speed limit, carefully watching the road ahead, when suddenly the woman drove through a stop sign and it was impossible to avoid smashing into her. The truth is the lady (who was driving over the speed limit) ran the stop sign and caused the accident. She contends she "stopped and then slowly entered the intersection" only to discover the insured, "streaking down the highway", toward her, "at a high rate of speed". She says it was impossible to avoid his crashing into her broadside. Because of what they look like - - and what the citizens of their town think them of - - two things will come to pass. First, the mayor's secretary, who is responsible for the accident, is paid for her loss and second, the elderly stumblebums insurance company will not renew his coverage. In this example, which happens more often than admitted, the "Reasonable Man" doctrine has taken a gigantic leap, right out the nearest window.

CONCEPT: In motor vehicle accident liability situations the determination, through the settlement process or the jury system, of whether a given motorist is "negligent" is allegedly based on the judging party's assessment of two fundamental questions: "Did the given motorist do what a reasonably prudent person would have done, and would have been expected to do, in a similar situation, as the one at issue?" And, also, "Could a prudent person, acting with due care, have avoided the accident and/or injury that occurred?"

THE FACTS ARE: This sounds good on paper but the reality is the insured is a middle aged man who's wife is a passenger in the right front seat, and suddenly complaining of chest pains. He's momentarily distracted and crashes into the rear of the automobile in front of them. Could he have avoided the impact if he had acted with due care? That would have been impossible but his insurance company must pay the property damage and/or the personal injuries he caused to take place. Will his insurance carrier raise his premiums because he had this particular accident? Yes, they will because in the vast majority of examples like this one they'll totally ignore what's right, honest and/or justified.

CONCEPT: Under the prevailing law governing motor vehicle accident matters in most states (with the exception of true no-fault states), the concept of negligence is supposed to be of critical significance since the amount of your recovery (and/or whether you're entitled to any in the first place) will depend upon the degree you contributed to the accident. In other words, how much of the accident you're responsible for.

THE FACTS ARE: This is pure mumbo-jumbo! I was involved in the business of insurance claims for almost three decades and this "concept" was never, and I repeat never, (in court, out of court, behind closed doors, etc.) taken into consideration, became an issue, nor even discussed.

CONCEPT: Under the formal law, the basis upon which the determination is made as to one's role in the issue of negligence or liability, and the nature and degree of that role, is supposed to depend on the state where the accident took place, and the legal rule (that is the "doctrine" or philosophy) adopted by that particular state. The legal doctrines (by which states operate in motor vehicle negligence cases) generally fall into two basic categories:

#1. THE DOCTRINE OF CONTRIBUTORY NEGLIGENCE: Under the Contributory Negligence rule, the underlying doctrine is that if you contributed to the cause of the accident in any way (even if it was only 5%) you're barred from recovering any money from the other party. In other words: When both, you and the other driver are, in any way whatsoever, negligent, neither can recover!

#2. THE DOCTRINE OF COMPARATIVE NEGLIGENCE: There are two basic forms which the doctrine of Comparative Negligence rule's have been assumed in most states: #1. The Pure Comparative Negligence (The 100% Type). #2. The Modified Comparative Negligence (The 50% or 49% Type).

THE FACTS ARE: When it comes to the Doctrine Of Contributory Negligence do you think if the Defense Attorney were to declare to the judge, "Your honor, as you can see the other driver was 5% negligent, therefore the law states he cannot recover", that he would prevail? If he tried that one the judge would laugh him right out of the courtroom.

Or, when it comes to the Doctrine Of Comparative Negligence, if the Plaintiff's Attorney declared, "It's clear that, under the terms and conditions of Modified Comparative Negligence, my client must be paid for his loss", he would be considered to be an ignoramus, who had no idea how to present a case.

Unfortunately, when it comes to the Doctrine Of Comparative Negligence, and I've seen this come to pass so often (especially "behind the scenes" - - either in the judges chambers or outside the courtroom in the hall - -that it boggles the mind!) the Legal Beagle Plaintiff's attorney declares, "Under the terms and conditions of Modified Comparative Negligence, my client must be paid for his loss". This comes bubbling forth from a mouth filled with froth because he hasn't proved, in any way whatsoever, which driver contributed "how much" to the accident. It's clear he expects the judge or Defense Attorney to make that "percentage determination" and is in a mad rush, be paid something/anything, scoop his fee and get back to his favorite bar where all the honey's sitting around waiting for him

IN CLOSING

It's generally assumed that the purposes and principals, as purported by the law, must foster safe transportation; deter reckless driving and reward good driving. If that's true than the question must be asked: Is that the prime consideration of the insurance industry when it comes to the settlement of claims? The answer to that is: Absolutely not! They could care less! Their goal is to con, duck, dance, hustle, swindle and escape from their legal responsibilities as cheaply as humanly possible.

And, as far as the majority of lawyers are concerned "The Law", as it applies to motor vehicle accident cases, is pure hogwash. They're convinced that the primary area in which they function (within the confines of our alleged "legal system") is hogwash and has absolutely nothing to do with what they're all about.

~~~~~

Dan Baldyga's fourth and latest book Auto Accident Personal Injury Insurance Claim: (How To Evaluate And Settle Your Loss) can be found on the Internet at http://www.autoaccidentclaims or http://www.caraccidentclaims.com. This book reveals "How To" successfully handle your motor vehicle accident claim, so you won't be taken advantage of. It also goes into detail regarding the revolutionary BASE (The Baldyga Auto Accident Settlement Evaluation Formula). BASE explains how to determine the value of the "Pain and Suffering" you endured - - because of your personal injury.

Copyright (c) 2003 by Daniel G. Baldyga All Rights Reserved

DISCLAIMER: The only purpose of this claim tip is to help people understand the motor vehicle accident claim process. Neither Dan Baldyga, Vince Ciulla nor About.com make any guarantee of any kind whatsoever; NOR do they purport to engage in rendering any professional or legal service; NOR to substitute for a lawyer, an insurance adjuster, or claims consultant, or the like. Where such professional help is desired it is the INDIVIDUAL'S RESPONSIBILITY to obtain said services.


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