Liability and Law

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Back to: TelaClaims Adjuster I – Insurance Basics for Adjusting a Claim

By the end of this module, you should be able to:

  • Define the three types of law used in civil court: statutory, common, and tort law.
  • Explain the duties of the insurer and the insured when a third party files a lawsuit against the insured.
  • Distinguish the types of damages awarded in civil court.
  • Identify various liability laws.

 

Statutory Law vs. Common Law

Statutory Law: Based on written laws (e.g. state legislature)

Common Law: Based on court decisions and customs when the statutory law does not provide an answer

Note: Statutory Law governs the authority of Common Law.

Tort Law

Tort: Any civil wrongdoing, whether intentional or unintentional

Tort Law: The body of law that addresses and provides remedies for any civil wrongdoing performed on another party

Two Types of Tort

Intentional Tort: A premeditated act that causes injury to a third party

EXAMPLE

OJ Simpson was sued in a civil court for the intentional torts of battery and wrongful deaths of Nicole Brown and Ronald Goldman

Negligent Tort: A negligent act that causes unintentional injury to a third party

EXAMPLE

Adam was severely injured by a faulty tool that he borrowed from Lisa. She could sue Lisa in a civil court for a negligent tort.

 

Plaintiff, Tortfeasor

Plaintiff: The person who suffered injury or damage; also known as the claimant

Tortfeasor: The person accused of committing a tort, otherwise known as the defendant

Joint Tortfeasor: A group of two or more persons accused of committing a tort

 

 

Legal Doctrines Related to Negligence and Liability

Defenses to a Claim Negligence

  1. Assumption of Risk: The claimant knew he had the potential to experience damage or injury
  2. Contributory Negligence: Failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury suffered, and sometimes reducing the amount recovered from the defendant.
  3. Comparative Negligence: A partial legal defense that reduces the number of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff’s own negligence contributed to cause the injury.

Contributory vs. Comparative Negligence

The fundamental difference between the legal concepts of comparative and contributory negligence is that comparative negligence seeks to compensate the injured party at least for some part of his or her injuries, while contributory negligence is a total bar to any damage award to the plaintiff.

Modified Comparative Negligence

Same as comparative negligence, except that the plaintiff receives no damages if they are found to be 50% (or 51%) or more at fault.

Res Ipsa Loquitur

The principle that the circumstances of an accident imply negligence.

Strict Liability

Strict (Absolute) Liability: Holds a party 100% liable for damages when the activity or instrument they are performing is inherently dangerous.

EXAMPLES

  • Explosives
  • Toxic gases and chemicals
  • Guns
  • Exotic or wild animals
  • Automobiles (in Florida)