If the case goes to trial, your lawyer has to call a witness establishing that the accident was the other driver’s fault. The insurance company has to call witnesses to establish that the accident was caused by someone else.
When an accident is caused by more than one person, the law of comparative fault, or comparative negligence applies.
In a trial, the insurance company will only be entitled to reduce the damages it pays if it can prove that someone besides its driver did something wrong to help cause the accident. They can prove this with an independent witness, by calling their own driver as a witness, or with a statement you made.
And the damages can be reduced by anyone’s fault – not just yours.
Let’s say your best friend is driving you to a party. The speed limit is 25; your friend is going 35. Another driver runs a stop sign, and T-bones your friend’s car. You are hurt.
Your friend only has the right of way when he’s driving legally. If he is substantially over the speed limit, or if he’s driving without his headlights in the middle of the night, he loses the right of way. But the other driver has to obey the stop sign.
The other driver’s insurance company is probably going to reduce its evaluation of your damages by whatever percentage of fault they feel is attributable to your friend.
This does not mean that the insurance company automatically wins. But if the lawsuit goes to trial in front of a jury, the jury will assign a percentage of fault, or negligence, to each driver. And no driver – or his insurance – will have to pay more than his percentage of fault.
So if the jury calculates your damages at $10,000.00, but finds the accident was 15% your friend’s fault, the judge will reduce the award against the other driver to $8,500.00.
I have been a lawyer over 30 years. The judges who write the jury instructions for Ohio trials asked me to help them write the instructions for comparative negligence. If you have questions about your lawsuit, talk with an experienced Cincinnati Injury Personal Injury Lawyer about the case. Call me, William Strubbe, at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed.