I have a case where my client had backed out of parking space, stopped and started to proceed when another driver backed out and hit her car. It is our position, of course, that the other driver is 100% at fault for the accident as our client had clearly gained control of the driving aisle and the other driver failed to look before backing and crashing into our client’s car.
The other driver’s insurer, Loya Casualty Insurance Company, has taken the position that each of the drivers is 50% at fault for the accident and, therefore, my client is barred from recovery. I have explained to them that the law in Nevada is that a person may recover from another if the injured person is not MORE at fault for the accident than the other. Here’s the statute behind my statement:
41.141. When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.
1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or the plaintiff’s decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.
2. In those cases, the judge shall instruct the jury that:
(a) The plaintiff may not recover if the plaintiff’s comparative negligence or that of the plaintiff’s decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return:
(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to the plaintiff’s comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.
The Statute is pretty clear and supports my statement to the Loya Insurance adjuster who says that he needs to take this to his legal department for a determination. O.K., fine, here’s some case law that supports my statement if the statute is not clear enough for them.
In Turnbow v. Wasden, 608 F. Supp. 237 (Nev. 1985), Ms. Turnbow, who was intoxicated was returning to her truck after relieving herself o the side of the road crossed into the path of an oncoming tractor trailer. Judge Edward C. Reed, Jr. wrote:
The ultimate issue here is whether Mr. Wasden was more or less negligent than Ms. Turnbow. Plaintiffs’ attorney has done a highly skillful job of endeavoring to develop and exploit all the possible indications of negligence on the part of Mr. Wasden. Mr. Wasden’s conduct was not perfect, but comparing the conduct of Mr. Wasden and Ms. Turnbow, Ms. Turnbow’s conduct was far more negligent than that of Mr. Wasden. The preponderance of the evidence is that the negligence of Ms. Turnbow contributed more to cause the accident and her resulting injuries than any negligence of Mr. Wasden. Upon making this finding, this Court may not award any damages to Ms. Turnbow. See, NRS 41.141(1). Nevada law adopts the comparative negligence standard, thus, precluding recovery if plaintiff’s actions are more negligent than defendant’s. Id.
Hopefully, Loya Insurance will realize that they are wrong on this issue and that my client is not barred from recovery based on their belief that a person is barred from recovery if they are 50% responsible for an accident. Even If they do make an offer to pay ½ of the damages, we will likely not accept it as their insured was 100% liable for the accident.