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Understanding Comparative Negligence
April 7, 2017

When youre injured in an accident in California youll probably have a lot of


?questions. Who is liable? What compensation can you recover, and from whom
What happens if Im partly to blame for the accident? What if Im injured in an
accident that is mostly my fault? What kind of damages can I recover? These are
all legitimate and important questions to consider in the wake of an accident.

At Yoni Weinberg , our California personal injury attorneys have decades of


experience helping clients understand their legal rights and options after an
accident or injury. Here, we answer a common question we get from our clients
What happens if I am partly to blame for an accident? In short youre not
barred from recovering compensation from the other party, but what you can
recover will be limited.


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California Negligence Law

California law follows what is known as the pure comparative negligence standard.
The most basic explanation of pure comparative negligence is this: you are liable
for the degree to which an accident or injury was your fault. This means that in
California any party so long as they were not 100% at fault can potentially
recover some compensation for injuries stemming from an accident.

For example, lets say that you were involved in a car accident last month. You
were slightly distracted while driving because you were talking on your phone.
The driver of the car that struck you was exceeding the speed limit by 35 miles
per hour. You were both injured in the accident and both file personal injury
lawsuits to recover compensation from one another. You claim that the driver of
the speeding car was negligent in his operation of the vehicle because he was
speeding. The other driver claims that you were negligent in the operation
of your vehicle because you were talking on the phone. In the eyes of California
law, you are both correct. Each of you will probably be able to recover
compensation from the other or more accurately, from the others insurance
company.

If your cases proceed to court the judge will determine the degree to which each
of you is at fault. All factors and circumstances surrounding the accident will be
taken into account during this determination. The greater the breach of duty to
drive safely, the greater the degree of culpability assigned.

For arguments sake, lets say that you are found to be 30% at fault for the
accident, while the speeding driver is found to be 70% at fault. What does this
mean for your recovery of compensation? Any compensation you receive will be
capped at 70% meaning that if you are seeking $100,000 in damages
the most you can be awarded is $70,000. The other driver, if also seeking
$100,000 in damages, would be able to recover $30,000 at most. In California
negligence lawsuits, damages are reduced by the degree to which you are
determined to be at fault for the incident.


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Experienced Negligence Attorneys


If you are partially at fault for an accident in which you are injured it is important
to seek the assistance of a qualified California negligence attorney. An attorney
can help to develop legal defenses and reduce the degree to which you
determined to be responsible for the incident. Getting an attorneys assistance is
especially important if your opponent in the matter is an insurance company.
These companies are not in the business of handing out cash to every accident
victim who files a claim. They will do everything in their power to minimize any
payouts they make to you. In fact, they will likely deny any wrongdoing and try to
pin the blame on you.



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?Is Your Car Totaled


February 25, 2017
A car accident affects your life significantly. Even if you escape physical injury, you
still have the lingering effects of the trauma and, most often, the tedious
aftermath of insurance claims, adjusters, rental cars, and car repairs. If your car
suffers little damage, your insurance company or the responsible partys
insurance company pays for the reasonable repairs to your car. If the cost of
repairing your car exceeds its value or comes within reach of the value threshold,
however, your insurance company totals your car.


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?When is a car totaled


First, you should know how your insurance company arrives at the decision
to total your car. Insurance company adjusters first calculate the cars
actual cash value (ACV), including depreciation, by consulting databases,
like Kelley Blue Book or National Automobile Dealers Association (NADA), for
:an appraised values based on several factors
year
make
model
mileage
,condition
any pre-accident upgrades or improvements
Location (rural or city, state to state) also makes a difference to value
based on supply and demand. In some regions, dealerships sell more trucks
.and suvs than in others
Then the adjuster compares ACV to the cost of repairing the vehicle.
Insurance company automobile appraisers determine the cost of repairs. If
the cost of repair exceeds the ACV, the insurance company declares the
.vehicle a total loss and issues you a check for that total loss amount
Cost of repair > ACV = Total loss
While insurance company procedures and policies vary, most insurance
companies deem a car totaled if the comparative ACV to the cost of
repair ratio indicates that its not worth repairing the vehicle. For example,
a 30-year old Nissan Maxima worth $1500.00 that needs $800.00 to
$1000.00 worth of repairs is likely a total loss even though the repairs cost
.less than the ACV
Insurance companies use various formulas to arrive at a total loss
determination, but all start with calculating the cost of repair to ACV loss
.ratio
ACV : cost of repair
Then they compare that total loss ratio to company-established limits or
state law limits. Some states set the damage to value ratio limits ranging
anywhere from 50% or 100%, a figure known as the Total Loss Threshold
.(TLT)
Cost of repair > 75% of ACV = Total loss (Alabama TLT)
Other states allow insurance companies to default to the Total Loss Formula
(TLF), which is when the cost of repair plus salvage value exceeds the ACV.
.The cars resale value as parts and metal equals its salvage value
Cost of repair + salvage value > ACV = Total Loss (California
TLF)

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?How is total loss value calculated


Second, you should know how an insurance company arrives at the total loss
value that they pay you. Insurance companies use the appraised value of your
vehicle (make, model, year, condition, etc.) less any deductible you owe to set the
loss value. They also deduct a contributory negligence percentage if you also
caused the accident. For example, if you are 50% responsible for the collision,
youll get half of the appraised value.
After calculations and appraisals, the paying insurance company cuts the check. If
the car is financed or leased, the money goes directly to the lender or leaseholder
with any leftover going to the registered owner.


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OTHER OPTIONS
?What if you dont agree with the insurance companys determination
Challenging the appraised value of your car: You can challenge your
vehicles valuation by examining the comparable values the insurance company
relied on in arriving at their value and then presenting your higher valuations. You
can also hire an appraiser to produce a report for the insurance company. You may
get more money, but theres no guarantee.
Buy your car back: If you want your car back for sentimental reasons or to fix it
up yourself, most insurance companies will give it back and pay you the actual
cash value minus your deductible and the salvage value.
Force a total loss: If you want the insurance company to total your car
(maybe its close to the threshold), consider making a diminished value claim. In
short, the diminished value is the difference between the cars value before and
after the accident. A car untouched by an accident is worth more than a car that
has.
Convincing the insurance company of the diminished value, however, takes work
to find before and after accident appraisals. You need to first find your cars pre-
accident market value by looking it up on Kelley Blue Book or NADA. Then you
need to hunt down cars like yours with accident histories and come up with a
value based on four or five of those comparables to show the difference in pre and
post accident values.
You can find the diminished value on your own or hire a professional to do it for
you. You can also rely on the insurance company to use their formula for
calculating diminished value, but you can be certain that number will be lower
than yours.
Call Us
Be sure you get the full value for your property damage in an accident by taking
the appropriate actions. Get informed. Seek advice from personal injury
attorney Joshua W. Golzer, , to verify proper compensation for your losses.