The insurance company has denied my claim due to "contributory negligence." What does that mean? By Josh Silverman on November 20, 2015

In Virginia we value our history which is often a good thing. However, it is also means we can be pretty stubborn against change. Contributory negligence is a doctrine that has more than outlived its usefulness. Virginia law is derived from English "common law" which is hundreds of years in the making. Under common law, contributory negligence means if the plaintiff was even minimally negligent and if the negligence contributed to the accident, the plaintiff loses. The plaintiff loses even if the defendant was primarily at fault.  Therefore someone 90% at fault is off the hook.

Most states have abolished the contributory negligence doctrine and replaced it with the far more reasonable "comparative negligence" doctrine. Instead of leaving the plaintiff empty handed, the court compares the negligence of the parties. If the defendant was 90% at fault and the plaintiff was 10% at fault the court simply reduces any verdict by 10%. Simple math and a common sense outcome. Unfortunately that isn't how it works in Virginia. 

If the insurance company denies your claim due to "contributory negligence" you should definitely consult with a lawyer because there are complex exceptions to contributory negligence including:

  • By statute, failing to wear a seatbelt can not be used as a contributory negligence defense (but please wear your seatbelt anyway)
  • Contributory negligence is not a bar to recovery when the defendant was engaging in willful and wanton conduct (like drunk driving, racing, etc.)
  • The defendant had the last clear chance to avoid the accident even though the plaintiff was also negligent

These defenses are tricky, but they can work.  Last year, I received a verdict for a client for the exact amount we sued for by showing the court the defendant had the last clear chance to avoid the accident even though there was compelling evidence that the plaintiff was also negligent. For more information, please visit our automobile accident page or contact us at (804) 325-4992. 

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Josh Silverman

Silverman Law Firm LC

At the Silverman Law Firm LC in Richmond, VA, attorney Josh Silverman and his team represent victims of personal injuries and medical malpractice. Josh Silverman has been recognized as a "Virginia Super Lawyer" every year since 2013 and was selected as a 2015 Top Rated Lawyer in Healthcare Law based on his AV Peer Review Rating in Martindale-Hubbell©.

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