"The adjuster claims I am partially at fault in the accident and he won't offer me full value on my (car)(injury claim)." I occasionally hear this when clients call me after hanging up the phone with the adjuster.
WHAT IS CONRTIBUTORY NEGLIGENCE AND WHY DOES IT MATTER?
"Contributory" or "comparative" negligence in Ohio are terms that mean the same thing: that you contributed to the collision due to your own negligence. Typical scenario: someone ran a stop sign and clobbered you and there is some evidence to suggest that you may have been speeding (more about that below). Some simple examples will help explain this concept and how it affects your claim.
Let's assume your $10,000 car was totalled in an accident and you were 20% at fault in the collision. In Ohio, the insurance company for the driver who was 80% responsible would owe you only $8,000 ( the value of your $10,000 car minus your 20% fault in the collision). If you and the other driver were deemed 50% responsible, the insurer for the other driver would owe you $5,000.
But if you were deemed 51% at fault, the insurer for the other driver would owe you nothing under Ohio law. Bottom line: your claim can be reduced by the percentage portion of your own contributory negligence, and it can be eliminated altogether if your negligence exceeds 50%.
THE IMPORTANCE OF COLLISION COVERAGE WITH YOUR OWN INSURANCE COMPANY
Because of Ohio's comparative negligence laws, it behooves you to carry collision insurance with your own insurance company. The reason is simple: IT'S NO FAULT COVERAGE AND NOT SUBJECT TO "COMPARATIVE" NEGLIGENCE!! So, in that 80/20% collision I referred to above (where you were 20% negligent), you can make a claim against your own insurance's collision coverage for the entire value of your $10,000 car. They'll pay you 10K, and get back 8K from the at fault party's insurance company (this is known as subrogation).
But if you don't have collision coverage, you are at the mercy of the 80% at fault driver's insurance company's argument that they only owe you $8,000 on your totalled car.
COMPARATIVE NEGLIGENCE CAN ALSO REDUCE THE VALUE OF YOUR PERSONAL INJURY CLAIM
The same rules apply to your personal injury claim in Ohio. How are these percentages determined? It can be as arbitrary and unscientific as an adjuster stating "we believe your client was 25% negligent for not wearing his seatbelt." This is not necessarily true under Ohio law as there are many exceptions to this rule, but it doesn't stop an insurance company from arguing it to an injured person "going it alone" without an attorney who is unaware of the limitations of R.C. 4513.263(F)(2)--or worse yet a clueless attorney representing an injured client who is unaware of this law.
Another common tactic is to claim that the injured person was speeding and was therefore contributorily negligent. In many situations, speed has no direct bearing on the cause of a collision. Example: you're going 58 mph in a 55 mph zone and someone blows a red light and T-bones you. That collision would have happened if you were going 55 or 57 or 58 mph, so the fact that you were 3 miles over the limit is irrelevant.
But none of this stops insurance companies from occasionally making these arguments in an effort to save a few thousand bucks. The key is to know how to smoke out any suspect contributory negligence arguments from the occasional legitimate ones.