If you or someone you love is in a car accident it can be very confusing navigating the legal terms, categories, and limits related to accident recovery. Different states have different laws related to recovering damages after a car accident. This post discusses and explains some of the important factors to take into account when thinking about recovery after a car collision under South Carolina law.
Unlike so-called “no-fault” states, South Carolina uses a fault based system for dealing with car accidents. That means that the person who was at fault, and/or his or her insurance company, is responsible for the losses or damages. In a no-fault state each damaged party exhausts his or her own personal insurance first, no matter who caused the accident. In South Carolina with the fault scheme, the person at fault is the only one who is responsible, and an innocent driver’s insurance company does not necessarily need to be brought into the case. However, an injured person who was not at fault for the wreck can ask his or her own insurance company for recovery, and then their own insurance company will ask for reimbursement from the insurance company of the person at fault. People who have suffered damages from car accidents that were not their fault can also pursue claims against the person at fault, or the at fault person’s insurance company.
The theory behind people being at fault for car accidents is negligence. In other words, someone who was at fault for an accident was driving negligently, or in other words carelessly. Negligence has four parts to it: duty, breach, causation, and damages. Duty means that someone had a duty to behave with a certain standard of care. For example, all drivers have a duty to drive reasonably and follow traffic laws. Breach means that someone violated the standard of care that they were supposed to follow. For example, if someone is driving 40 miles over the speed limit, he or she is not driving reasonably like all drivers should, therefore he or she breached the duty owed. For causation, it needs to be the breach of that duty that caused the accident. In the example above, it is likely that the accident will occur because the person is driving negligently. Though if the accident is caused because a construction crane drops a boulder on the car from above, the negligence of the speeding driver was not the cause of the accident. Therefore the speeding driver could argue that his or her negligence did not cause the accident. The final requirement for negligence is that there are damages. Someone can act negligently, but if nothing bad happens then you cannot sue him or her, though you would not have anything to sue him or her for, anyway! There needs to be damages caused by the breach of duty.
You can sue someone who hurt you because he or she was negligent or careless. When you sue someone for personal injury after a car accident, what you are saying is that the driver you are suing caused the accident by not acting in the way he or she should have. Otherwise known as negligence.
Modified Comparative Negligence
Often times though, it is not as simple as one driver being completely at fault and another driver having no fault at all. Juries or judges can apportion blame out between the drivers so that the drivers are each assigned a certain percentage that indicates how much they are to blame. Once the amount of blame has been assigned, South Carolina follows a modified comparative negligence scheme.
Under modified comparative negligence theory, anyone who is more than 50 percent at fault for an accident is not able to recover anything from the other driver. If someone is 50 percent or less at fault, he or she can still recover from the other driver, but the damages will be reduced by the amount of his or her fault. For example, let’s say there are two drivers in an accident, Driver A and Driver B. Driver A is 20 percent responsible and has $10,000 in damages, Driver B is 80 percent responsible and has $50,000 in damages. Driver A can recover damages, but reduced by the amount of his or her fault, therefore driver A can get $8,000 in damages from B and/or B’s insurance company. Driver B is not able to recover because his or her fault is above 50 percent. It does not matter the amount of his or her damages. Of course B may be able to get some coverage from his or her own insurance company, but that is a different process and consideration.
Statute of Limitations
Statutes of limitations are the amount of time you have after an event to start the legal process against the defendant. Any claims for recovery you may have need to be filed before the statute of limitations have passed or else you will not be able to recover damages.
Under South Carolina law, you have three years to file a complaint for damages from a car accident, whether those damages stem from personal injury or damage to property. If there is any kind of government or municipality involved, for example the collision was with an on duty police officer driving his police provided vehicle, then the statute of limitations is much shorter and you need to file specific papers to give the municipality notice. While you should always contact an attorney as soon as possible after a car accident, it is especially important when there is government involvement. The statute of limitations can also be shorter if the at fault person is part of a charitable entity (such as a hospital, etc.).
Even if you are planning to settle with the insurance company instead of bringing the case to court, you want to be able to leverage the possibility of filing suit in order to get a favorable settlement. You will almost never get the best settlement from an insurance company unless the insurance company knows you are willing to take the at fault driver to court if necessary. As the saying goes: “A quick settlement is usually not top dollar.”
Greenville, South Carolina Car Accident Attorneys
It is crucial that you seek legal consultation as soon as possible after a car wreck/collision/accident. Car accident recovery will be very specific to the circumstances of each case so you need to make sure you work with an experienced Greenville car accident attorney. Double Aught Injury Lawyers in Greenville, South Carolina, can help you maximize your recovery.
Bryan Ramey is a Personal Injury Attorney who practices in the upstate of South Carolina. He graduated from The University of South Carolina School of Law, and has been practicing law for 27 years now. Bryan Ramey believes in representing the injured. Learn more about his experience by clicking here.