How Can You Defend Against A Counterclaim Of Contributory Negligence In A Motorcycle Accident?

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If you're a biker who has recently been involved in a collision with a car, truck, or SUV, you may be wondering how you'll be able to replace your bike and recover any costs you've paid for medical treatment, physical therapy, or medications. In most cases, the other driver's insurance will cover most of the costs you've incurred, and if they don't, you may find yourself suing the other driver in civil court. But every now and then you might find yourself surprised after the other driver files a counterclaim against you, alleging that you contributed to the accident and you should be responsible for any costs (sometimes including costs to repair the other vehicle). What should you do if the defendant files a counterclaim against you? Will you still be able to recover money from the other driver? Read on to learn more about defending yourself against this claim.

When might you face a counterclaim of contributory negligence?

In many cases, particularly if there are severe injuries or vehicular damage involved, the auto driver may attempt to limit liability (and potential financial losses) by filing a counterclaim against you, claiming that you were negligent while operating your motorcycle and therefore caused the accident or contributed to your own injuries. For example, if you were not wearing a helmet and suffered head trauma, the defendant may claim that your failure to wear a helmet caused your injuries, rather than the accident itself.

In some situations, there are no facts supporting a counterclaim and your attorney may be able to simply file a motion to dismiss this claim without a hearing. However, in other situations, you may need to provide a defense with the help of a lawyer from a firm like Hinkle Law Offices in showing that you were not contributorily negligent, or that your injuries or motorcycle damage were directly caused by the other driver.

What are some possible defenses to this claim?

Most states take a modified comparative negligence approach to determining damage in contributory negligence cases. This means that if your negligence is determined to have contributed to the accident by a factor of 50 percent or more, you may be prevented from recovering financial damages from the defendant. However, if your level of fault falls below 50 percent, you'll still be able to recover some costs.

The key to increasing the dollar amount of your potential judgment is minimizing the factor by which you're determined to be at fault. Although a judgment of 0 percent fault is ideal, it's often not feasible -- so you'll want to show that the defendant's actions directly contributed to the crash. You may want to track down potential witnesses to gather statements you may be able to use in court, or even enlist the services of a traffic analyst to show that the other driver was at fault.

Can you still recover money if this counterclaim is successful?

Even if a counterclaim against you succeeds, this doesn't mean you won't be able to recover any money. Generally, you'll be prevented only from recovering (from the defendant) any damages directly caused by your contributory negligence. In the helmet example above, you may be prevented from recovering damages directly attributable to not wearing a helmet. However, you can still have these costs paid by your own insurance policy.

Other costs directly stemming from the defendant's negligence should be paid by the defendant and/or his or her insurance company. If the insurance payout is insufficient to pay off all your bills, you may also be able to recover a judgment against the defendant and use this to garnish his or her wages until you've been fully compensated for your injuries.

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23 June 2015