are no damages, then there is no claim.
Likewise, if a person is damaged solely
as the result of their own negligence,
then they have no mechanism for recovery. The reality is that most situations
involve varying degrees of both with
shared liability and subjective damages,
hence the need to investigate, evaluate
and negotiate outcomes.
In every new claim it is incumbent
upon the adjuster to concurrently investigate both liability and damages. When
looking at damages, the adjuster should,
at minimum, do the following:
E Obtain a statement from the insured.
E Obtain a statement from the claimant.
E Obtain statements from any witnesses.
E If a motor vehicle accident, state all vehicle occupants.
E Assess credibility of all parties.
E Examine and photograph all physical
ERetain evidence when necessary, adhering to proper evidence retention
EObtain a police report or similarly
available incident report.
E Determine the cause of the accident
These are basic recommendations that
Modified Comparative 50% bar –
Plaintiff cannot recover 50% or
need to be considered fluid, as no two
claims are the same. In instances of more
complex liability, the adjuster will have
to conduct an even more detailed investigation. As the investigation progresses,
there must be a determination of cause.
Primary considerations should be:
J Did any party violate a state or local
statute? If so, did this violation have any
bearing on the accident?
J Was a tort committed?
If so, who were the responsible parties? In
some instances there
may be joint tortfea-sors. There may also
be tortious actions committed by nonparties to the accident, such
as municipalities or absentee owners.
J There also must be the establishment of
proximate cause, that which, in a natural
and continuous sequence, unbroken by
any efficient intervening cause, produced
the injury and without which the result
would not have occurred.
There may also be secondary determinations of liability that should be given
due consideration. Some examples may
Q Intervening Cause
An independent cause that intervenes between the original wrongful act
or omission and the injury, which turns
aside the natural sequence of events and
produces a result that would not otherwise have followed and could not have
been reasonably anticipated.
Q Last Clear Chance
Did the party with the last clear chance
to avoid the accident do so? Are they liable for their failure to act on this chance?
Q Attractive Nuisance
Negligence arises when equipment or
condition is such that it would be both attractive and dangerous to the curious, often
children. This could include tractors, unguarded swimming pools, open pits, and
abandoned refrigerators. Liability could be
placed on the people owning or controlling the premises even when the child was
a trespasser who sneaked on the property.
Some jurisdictions, such as California, have
abolished this doctrine and replaced it with
rules of foreseeable danger.
Q Dangerous Instrumentality
Was the instrumentality maintained
in such a condition that it was dangerous
and this danger was known holding the
owner liability for any injuries caused by
that tool’s operation. This is particularly
challenging in Florida where the state
Supreme Court, in Southern Cotton Oil
Co. v. Anderson, 80 Fla. 441, 469 (Fla.
1920), extended the doctrine to motor
vehicles, holding that owners may be
held accountable for any damages suffered by third parties as the result of
the negligent operation of their vehicles
when they are driven by others with
their knowledge and consent. This doctrine imposes strict vicarious liability
upon the owner of a motor vehicle who
voluntarily entrusts that motor vehicle
to an individual whose negligent operation causes damage to another.