Texas has had a proportionate responsibility law for some time. The purpose is to prevent someone from recovering the amount that their own negligence contributed to a claim. This is codified in the Civil Practices and Remedies code which requires the “trier of fact” to determine the percentage of responsibility that a claimant’s actions contributed to a loss. Several recent examples reported to IIAT indicate that many adjusters tend to assign a common 20 percent for many auto accidents.
In one case the insured was driving down the road when someone turned directly in front of him. The other company offered to pay 80 percent of the claim based solely on their customer’s comment that the insured seemed to be driving “kind of fast.” This shouldn’t come as a surprise. When reporting an at-fault accident, most people try to portray the facts in the light that is most favorable to them. Few will admit they were distracted by a cell phone, cheeseburger or changing channels on the radio. It’s the adjuster’s job to estimate how the claim would be handled if it was being litigated. Perhaps it’s chance, but most examples presented to IIAT have involved the same estimate of contributing negligence – 20 percent.
What should you do if your customer is in this situation? First, remind them that this reduction is based on an estimate. Have them contact the adjuster and ask what evidence is being used to reduce the amount of recovery. If that fails, your customer can always file a collision claim and let your company argue about the percentage during subrogation. In some cases, the deductible may be less than the reduction of the claim amount.