What happens when more than one person causes an injury? How does the insurance
company pay the claim when different insurance companies are responsible
for one injury?
It is not all that unusual that someone is injured by the negligence of
more than one person. Consider an icy intersection when several cars go
too fast and fail to stop for a stop sign. Two (or more) drivers may be
responsible for injuries to the driver who had the right of way, only
to be hit by multiple cars that have gone out of control due to the negligence
of their drivers. Or consider a fall at a store: both the owner of the
store business and the owner of the premises may have been negligent to
create a dangerous condition for customers in the store.
Before 1986, Colorado law permitted the person who was injured by the negligence
of two or more persons to pick one negligent party (usually the one with
the most assets to pay for the claim) and pursue the injury claim against
just one of the negligent parties. In 1986, however, the Colorado state
legislature passed a law that required the joinder of all responsible
parties to a claim so that the court could look at all the facts and assess
the appropriate percentage of fault against each person who caused the
injury. The purpose of the statute was to make each negligent party pay
no more than its fair share of the damages owed to the injured party.
In order to make sure that a negligent person does not point the finger
of fault at just anyone who was in the area of the injury, however, the
law also requires the negligent party provide the injured person with
“adequate notice” of the “non-party’s” fault
so that the injured party can make a claim against the newly designated
non-party to the claim. The law still protects the injured person from
receiving random or speculative designations of others at fault for the injury:
- The designation of another party must set forth the name and last known
address of the other party or “the best identification of such nonparty
which is possible under the circumstances”; this means that the
designation of another party must be the result of a reasonable investigation
of the facts.
- The designation of another party at fault for the injury must contain “a
brief statement” of the factual and legal basis for the negligent
party’s belief that the other part was partly at fault for the injury.
- If a lawsuit was filed for the injury claim, the negligent party who was
sued must designate the other party(ies) it claims were also at fault
within 90 days of when the injury claim was filed in court.
Although the new law only applies specifically to injury claims that have
been filed in court, insurance adjusters will also apply the law to evaluate
the amount of money the insurance company will pay to the injured claimant.
In negotiating a settlement of an injury claim, an insurance adjuster
may assert, for example, that another party (not their insured) was 50%
at fault for the injury and, thus, only offer half of what the claim may
be worth. The insurance adjuster will stick to this position even if the
“non-party at fault” has no insurance or assets to pay for
his or her share of the damages. This position will make a settlement
of the claim impossible.
When an injury is caused by more than one person, resolution of that injury
claim can be complex and will likely require the assistance of experienced
personal injury attorneys. If you have this kind of tricky injury claim,
consider a free initial consultation with the experienced attorneys at
Clawson & Clawson LLP. Our attorneys will discuss all the options
you have regarding this kind of complex injury claim so that you can understand
why the insurance company won’t pay for your injuries and then consider
the best way to get your claim resolved.