Mechanic's Liens & South Carolina Residential Builders
October 1, 2015
Car Accidents & Personal Injury Claims
November 17, 2015
Car accidents, even when relatively minor, can cause personal injury and damage to property. If this occurs, victims of an accident may wish to file a personal injury lawsuit against the person responsible in order to recover a damages award. However, there are several issues related to personal injury lawsuits that are important to be aware of.
Statute of Limitations
An important aspect of personal injury claims is the amount of time an individual has to file the lawsuit before the claim is barred. Under South Carolina law, this period, called the statute of limitations, is three years from the date of the accident in personal injury and property damage lawsuits. However, the statute of limitations does not apply to claims filed with an insurance carrier; it only applies to formal civil lawsuits.
Regardless of whether it is believed that a settlement outside of the courtroom setting may occur, it is still important to file a lawsuit. This is because it preserves the individual’s right to litigate and also places pressure on the defendant. A defendant who knows there is a serious threat of litigation will likely be more apt to seriously negotiate. It is also important to file a lawsuit because once the statute of limitations period runs out the ability to use the court system is usually lost forever.
The principle of comparative fault arises when more than one person is at fault for an accident. South Carolina is considered a modified comparative fault state, which means an injured party cannot recover if it is 50 percent or more at fault for the accident. Under a pure comparative fault state, an injured person can recover, even if he or she is 99 percent at fault.
Under modified comparative fault, an injured party can recover as long as his or her fault is less than 50 percent and the other driver is more at fault for the accident. However, the amount of recovery is reduced by the percentage of fault assigned to the person recovering. For example, if the person seeking recovery is deemed to be 25 percent at fault for the accident and the other driver is deemed 75 percent responsible, the damage award will be reduced by 25 percent.
The comparative fault is dependent on the decision of the court, meaning that the judge or jury must follow them. However, these rules also impact settlement negotiations. When fault is fairly evenly split between the parties, negotiation may be much more difficult.
As a result of the comparative fault rules, there are generally three options for an individual seeking recovery for injury or property damage:
Filing a claim with his or her own insurance company (the company will then usually seek recovery from the other driver’s insurance company)
Filing a personal injury lawsuit against the other driver
Filing a claim directly with the other driver’s insurance company (called a third-party car insurance claim)
Fault-based states, like South Carolina, are opposed to no-fault states in which all individuals must file claims with their own insurance company first. Only after pursuing the claim through their own carrier, or if the amount of damages reaches a statutorily determined level can the individual pursue recovery against the other driver. This is true regardless of who is at fault or the amount of that fault.