Rhode Island (RI) and Massachusetts (MA) personal injury attorney, David Slepkow and California (CA) negligence and injury lawyer, Steven Sweat, have coordinated their efforts to provide this multi-state analysis of tort and injury Insurance law. Most non lawyers assume that liability, negligence and insurance law is relatively similar across states in the United States. This is far from the truth. Each state has varying laws, regulations, procedures, common law, cultures, rules and practices. This means that the same rear end automobile accident or jackknife truck-car collision could lead to widely varying results depending on which state the car collision, trucking wreck or motorcycle accident occurs.
Will The Insurance company have to compensate me for my injuries even if I was partially at fault for the motorcycle, slip and fall, automobile, motor vehicle or truck accident?
Rhode Island Comparative Fault: Rhode Island and Providence Plantations, has adopted a pure comparative fault system. This means that a motorist who is more than 50 percent at fault is still entitled to collect damages such as pain and suffering, lost wages, medical bills and permanency. If a slip and fall victim is 97 percent at fault for a fall down stairs, premise liability accident, then the victim may still be able to collect three percent of his or her damages against the other responsible party. The applicable Rhode Island comparative fault statute can be found here: § 9-20-4 Comparative negligence.
Massachusetts (Mass.) Comparative Fault Law: Massachusetts (MA) legislators have enacted a modified comparative fault systems. G.L. c 231 Section 85 Modified comparative fault is very different from pure comparative fault adopted in Rhode Island. Mass. utilizes modified Comparative negligence law. If an injured claimant is more than 50 percent negligent for an accident, fall or mishap then the injured victim has no right to recover against the alleged tortfeasor. Modified comparative fault in Massachusetts also applies to wrongful death causes of action accidents such as motorcycle accidents, bicycle accidents, pedestrian accident, trucking wrecks and auto collisions.
Joseph G. Murphy Commissioner of Insurance for the Commonwealth of Massachusetts stated “If an operator’s actions were more than 50% of the reason for an accident, that operator’s insurance company must cover all of the losses and expenses incurred by others who were affected by the accident. However, if all individuals involved in the accident were partly the cause of it, and no single individual was more than 50% at fault, insurers are only responsible for restoring other injured parties to the extent they did not contribute to the accident.”
California Law: Comparative fault in California operates more like the Rhode Island version than the MA version. Under California tort law, a party who is at fault (even more than 50%) may still collect damages but, compensation must be reduced by the percentage of the fault attributed to the party claiming injury. What is interesting is how the Golden State requires defendants to pay depending upon their allocated percentage of fault in causing or contributing to personal injury. Under, the Californai Civil Code that was enacted in response to a ballot proposition measure almost 30 years ago, the rule of law is as follows:
- Civil Code section 1431.2(a) (Proposition 51) provides: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”
This means that if one defendant is found to be only 10 percent responsible for causing the harm, they may be liable for the full amount of economic damages such as medical expenses, lost wages and property loss but, the same would not apply to an award of “pain and suffering”. For the “non-economic” damages, they would only be responsible for 10% of the total award.
Will the insurance company be compelled to pay ‘no fault’ damages in a car accident and how does this work? In a no fault state, can I still file a claim for additional damages against the negligent torfeasors as a result of the car crash?
Rhode Island Law: Rhode Island does not have no fault benefits in car or motor vehicle accidents except for individuals who purchased med pay insurance coverage from their automobile insurance company. ‘Med pay’ is no fault insurance which covers the insured’s medical bills up to the designated amount regardless of who is at fault for a van, Semi, SUV or RI motor vehicle collision.
Massachusetts Laws: Law free advice states “So if you are involved in an accident and sustain both property damage and personal injuries, your standard Massachusetts no-fault policy with PIP will cover your medical expenses and 75% of your lost wages (depending on whether or not you also have disability coverage from your employment) up to $8,000. However, the rules change if you also happen to have health insurance. If you have health insurance, your claim will be paid by your car insurer up to $2,000. You must submit the rest to your health insurer for payment. Your health insurer is not obligated to pay the first $2,000. Whatever your health insurer does not pay, it will resubmit to PIP. If you have happen to have Medical Payment coverage under your auto insurance policy, your Med Pay will cover whatever is not covered by PIP and your health insurance. Always check your policy, as you may or may not have a “standard” Massachusetts policy.” Read more: http://accident-law.freeadvice.com/accident-law/auto/massachusetts-car-accident-pain-suffering.htm#ixzz3VGOHpDhr
“Bodily injury claims are allowed only if: 1) You have incurred more than $2,000 in reasonable and necessary expenses to treat your injuries; OR 2) You have suffered any one of the following: – permanent and serious disfigurement; or – a fracture; or – loss in whole or part of a body member; or – a qualified loss of sight or hearing; or – death.” http://accident-law.freeadvice.com/accident-law/auto/massachusetts-car-accident-pain-suffering.htm
California Law: While there have been several attempts funded by the auto insurance industry to make California a “no-fault” jurisdiction, none have succeeded. California still remains an “at fault” state when it comes to auto accidents and other personal injury claims. The only time a party would be seeking compensation from their own insurance carrier if they were involved in an accident where a third party was at fault would be: (1) if that at fault party had no insurance – in which case the uninsured motorist provisions may come into play; (2) if the at fault party had low policy limits that were below the limits of the injured party’s insurance policy, which would trigger an UNDERinsured motorist claim; or (3) if the injured person had “medical payments” (or “medpay”) coverage and submitted some of the medical expenses through their own carrier (this last type of coverage would be subject to reimbursement to the insurance company upon recovery from the at fault party’s carrier).
What types of damages can be recovered by beneficiaries in a wrongful death cause of action? Who are entitled to collect damages as a result of a fatal car, semi-truck or motor vehicle wreck?
Rhode Island: In Rhode Island the executor of the estate may file a lawsuit against parties responsible for the fatal car or trucking accident on behalf of the statutory beneficiaries. RI wrongful death law allows the following types of damages : Prospective income / earnings, Value of homemaker’s services, Punitive damages, hospital and medical expenses prior to death and Pain and suffering prior to death. http://webserver.rilin.state.ri.us/Statutes/TITLE10/10-7/10-7-2.HTM
Massachusetts fatal crash law: MA law, G.L. c 229 Section 2, delineates compensation that can be obtained when someone dies as a result of careless, negligent, reckless or criminal conduct . This Massachusetts law provides for Punitive damages in cases of malicious or reckless type conduct or inaction. Punitive damages are most often granted in cases of drunk driving, reckless, drag racing, intentional conduct driving or car stunts. The section of the Massachusetts (MA) Wrongful Death Law pertaining to damages allowed in Mass. is here:
“(1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant…… ” https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/Chapter229/Section2
California Law on Wrongful Death Claims: California has similar statutes that allow for recovery of relatives for the death of a loved one caused by a negligent or wrongful act or omission. In general, in order to recover for wrongful death in CA, one must be a spouse, child or parent of the deceased person. The type of damages that can be recovered include the following:
- Economic Damages: Most likely the loss of income from a breadwinner who was providing financial support to one or more family members is the single greatest component of so-called “economic damages” in a CA wrongful death claim. Other types of economic recovery including the costs of funeral or burial expenses, and the cost of the loss of household services previously performed by the decedent.
- Non-Economic Damages: What can be recovered beyond “out of pocket” expenses for the death of a loved-one is described under California Law as follows: “Loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support” for all immediate relatives, loss of enjoyment of sexual relations (for a spouse) and the loss of a loved one’s “training and guidance” (in the case of a parent-child relationship).
What is the interest rate that an insurance company must pay on a judgement for damages in a personal injury or motor vehicle judgment.
Rhode Island:The interest rate for all judgments for car, truck and motorcycle accident in Rhode Island is 12 percent back to the date of the accident.
Massachusetts: 12 percent simple interest from time of filing complaint until judment post judgment interest in MA runs at 12 percent. Piece and Mandell states “Because the judgment amount includes pre-judgment interest, and post-judgment interest is calculated on the entirety of the judgment, post-judgment interest includes interest on interest – that is interest on the pre-judgment interest awarded.” http://www.piercemandell.com/insurance-defense-and-litigation/interest_on_tort_judgements_for_personal_injury_and_property_damage_claims_boston_ma
California: Interest rates on post judgment awards depends upon the type of recovery. If the money recovered was based upon a written contract that specifies an interest rate, this would apply. If no interest rate is stated or in the case of a personal injury or tort award, the “legal rate of interest” is 10% per annum, which will continue to accrue until the judgment is satisfied (paid).
