A member asked the IIAT technical staff to explain the Texas proportionate responsibility law. His daughter had been involved in an accident in which the other driver turned in front of her. She hit the other vehicle in the rear quarter. Police were called and the other driver was shown to be at fault. When the adjuster for the other insurance company (a direct writer exclusively providing insurance to a particular professional group) contacted the agent, he said the company would pay only 90 percent of the repair estimate, because the daughter had been driving “rather fast” and could have avoided the accident by stopping sooner! The adjuster told the agent, “contributory negligence is the law in Texas and every company uses it.” The agent said he had never heard of one of his companies using it.
Actually, the company’s treatment of the agent is an example of “comparative negligence” as governed by the Proportionate Responsibility statute in Chapter 33 of the Texas Civil Practices and Remedies Code. (The legal concept of “contributory negligence” no longer exists in Texas or most other states. If we still had a contributory negligence statute, the adjuster would have offered nothing because the daughter was partially at fault.)
We explained that making adjustments on the basis of “comparative negligence” is a game played by some insurance companies as a means to lower claims payments and irritate consumers. The law gives judges and juries the duty to determine the percentage of responsibility of each party to a lawsuit and reduce the amount of damages recoverable by a claimant by a percentage equal to the claimant’s percentage of responsibility. If the claimant’s percentage of fault is greater than 50 percent, they may not recover any amount of damages from the other party. For an adjuster to arbitrarily assign 10 percent fault to the daughter is an abuse of the system. We made three recommendations to deal with this situation:
- Report the claim to the insured’s physical damage carrier. Let them pay for the damage and subrogate against the other party for the amount paid plus the insured’s deductible. The adjusters can argue about comparative negligence if they want to.
- File a complaint with TDI.
- File an action in small claims court.
