Question: I got hit on by a person who failed to stop at a stop sign (my road didn’t have a stop sign). I am told by their insurer that they are reducing my claim by 10% because I had a last clear chance to avoid the accident but didn’t, and something about reasonable care. What does this mean, and can they really not pay 100% of my claim?
Answer: It’s very possible that they can reduce your claim by 10% if you live in a comparative negligence state. While this may be aggravating, it’s better than if you lived in a contributory negligence state where the insurer could deny your whole claim if you were found to have contributed any tiny bit to the collision.
In states that have comparative negligence, which it appears you live in, liability for a car accident can be distributed between each driver according to the percentage they each are found to be negligent or at-fault for the incident.
The car insurance company involved seems to believe that you could have taken action to avoid the accident, but didn’t. As a result, they found you 10% at-fault, which will reduce your claim settlement by that amount. Thus, if your car had $5,000 worth of damages, only $4,500 would be paid for.
Reasonable care and “last clear chance” are terms used by the auto insurance industry when speaking about what a driver should and could do when there is an accident, basically that the driver had the times and means to prevent an accident, but didn’t do it.
Taking reasonable care as a driver is basically doing what an ordinarily prudent and rational person would do in similar circumstances. Some states define negligence as failure to use reasonable care under the circumstances.
So, if you didn’t have a stop sign but could see the other driver, that did have a stop sign, wasn’t going to stop, you as a prudent driver should have stopped (even without having a stop sign) to prevent the collision. Having time to stop and avoid the car that is running the stop sign, but not doing so, means you didn’t take your last clear chance to avert the accident.
Last clear chance goes hand-in-hand with reasonable care as what drivers should do to prevent a car accident.
As a driver, you are to take reasonable car and avoid an accident if possible. If you don’t, there is the possibility the insurance company involved with the claim could place you partly at-fault. A way around getting your claim reduced by the at-fault party's insurance company is to put a claim through your own collision coverage for your car's damages. However, doing the claim this way would make you owe your collision's deductible amount.