Why do I need to wear a seat belt and how could it impact an insurance settlement?
In this episode of The Groth Law Firm Podcast, Jon Groth sits down and talks with Attorney Ryan Truesdale and Clerk Seth about how wearing your seat belt could effect your compensation if you’re involved in an accident.
Transcript:
Jon Groth:
All right, here we are. It’s the Groth Law Firm podcast, and we have a bunch of different questions and see if Groth gets it. Let’s see if I can get the information here and hopefully educate some people about various topics. We have Ryan Truesdale, one of our attorneys who’s sitting across from me. Then we have, which nobody can see, but I’m pointing at you. Seth is one of our law clerks. We were talking about new clients and some interesting things that have just kind of popped up in the past week or so. Seth, you had a good question about this because it’s come up more than once in the past couple days, so I’ll let you kind of lead us here. What would you like to talk about and why?
Seth:
Sure, thanks for having us, Jon. With being on intake, I found in the last couple weeks, a couple clients have called in asking about how not wearing a seat belt when they are the injured party involved in an accident and not at fault affects the outcome of their case.
Jon Groth:
Okay. You got to go a little bit closer into the mic because you’re kind of dropping out. I can hear you, but I think that’s because I’m here and there. Let’s see. We’re talking about seat belts, whether that affects your case in any way. Ryan, do you know the answer to this question?
Ryan Truesdale:
The answer is, it can.
Jon Groth:
Oh, there we go. Look at that. Now we’re done and let’s walk away. Winner.
Ryan Truesdale:
I’m here all night, everybody. I’ve got all the information.
Jon Groth:
I don’t know which button to hit to make that funny.
Ryan Truesdale:
There we go. Perfect.
Jon Groth:
Maybe that’s it. So yeah, so it can. It can because, the way that I like to talk about it is, it puts your case on discount. You’ve placed your case on the discount rack. Do you know what percent discount you give yourself if you’re not wearing a seat belt?
Ryan Truesdale:
If I answer it wrong, am I going to be fired?
Jon Groth:
Well, you’re not going to get fired today.
Ryan Truesdale:
It’s 20%.
Jon Groth:
Oh, close.
Ryan Truesdale:
I’m off?
Jon Groth:
You’re off.
Ryan Truesdale:
Oh.
Jon Groth:
15%.
Ryan Truesdale:
15.
Jon Groth:
Oh, you’re close. If we were The Price is Right, you’re close without going over. So, you went over.
Ryan Truesdale:
Correct. So, this is it. This is my resignation. Jon’s coming down on me.
Jon Groth:
Yeah. So it’s 15%, and this is one of those things where it’s kind of the secret of the law. Because if you’re going to trial, the jury doesn’t know certain things. They aren’t told that it’s capped at 15%. What happens is, it’s something where you’d have your trial take place and then afterwards, there’d be a discussion with the judge about what the reduction is. I think a jury could put in there that it’s 20% or 50% or whatever, but then the judge would change the verdict down to max of 15%.
Jon Groth:
Now, how much in detail do I want to go on this? Let’s say you were injured in a car accident, Seth. Or, I don’t want to say you were injured because that’s bad luck. Let’s say there was somebody you were talking to was injured in a car accident, and they injured their right foot because they slammed on the brake because somebody in front of them was acting negligently. They slammed on the brake and then collided with that vehicle and they broke their right foot. Okay?
Ryan Truesdale:
Okay.
Jon Groth:
They were not wearing their seat belt. Now, I’m totally putting you on the spot here, so I don’t expect that you’re going to get this right. But, this is why we have these kind of fun conversations. So, would the seat belt defense affect that person?
Seth:
The person being injured?
Jon Groth:
Yes.
Seth:
Well, first and foremost, I guess we’d have to look to the jury instructions where they’d ask if there was an ordinary care exercised by the injured party. Which in most cases, the answers are going to be that yes, they should have operated in an ordinary care fashion because they failed to wear their seat belt. Then you would look to if not wearing the seat belt was in fact the cause of the injury, which is where the defense and insurance companies will come in and say that if the injured party was in fact wearing a seat belt, these injuries would not have occurred.
Jon Groth:
That’s a fantastic answer, Ryan. How would we determine whether the injuries were caused by the lack of wearing a seat belt?
Ryan Truesdale:
Well, one way would be get an expert that could look at forces. A force expert could say, “Well based upon what has happened, this was or was not the cause.” So based upon that, we could do that. We can also just kind of look at the report, figure out kind of how the foot was broken.
Jon Groth:
Yeah. I think that’s a fantastic answer. I agree [inaudible 00:04:56] percent. Let me just read the jury instruction because you must have read it beforehand, Seth, because you’re on your game here. Let’s see. This is jury instruction 1277, Safety Belt: Failure to Use. I’m not going to go into whether it was equipped with a safety belt, I’ll just skip into the second part here. “If you determine,” and this is the jury determining. “If you determine that the plaintiff was negligent in failing to use an available safety belt, you should answer question,” blank. That’s just the question that’s on the special verdict, which asks whether plaintiff’s failure to use the safety belt was a cause of plaintiff’s injuries. The next paragraph says, “If you determine that the failure to use the safety belt was a cause of plaintiff’s injuries, you should then determine what percentage of plaintiff’s total damages were caused by the failure to wear an available safety built.”
Jon Groth:
This is something where I think you’re both exactly on point, that the insurance company takes advantage of this. They’ll look at the police report and see whether the box is checked, whether they were wearing a safety belt or not. I’ve had the situation, I’m sure you’ve had this too, Ryan, where you have the insurance company say, “You weren’t wearing a safety belt. Your entire case is reduced by X amount.” 10%, 15%, whatever it is. I think that’s wrong. I think that’s where the insurance company is trying to take advantage of somebody because in the situation we just talked about, it was a foot injury. That second paragraph I read, I don’t know of any doctor, any expert, that’s going to say a foot injury, a broken foot by slamming on the brakes, was caused by the failure to wear a safety belt.
Jon Groth:
I think if you’re looking at neck injuries, shoulder injuries, maybe. That’s more likely where yes, they would have a shot at reducing the damages based on the failure to wear a seat belt. But, I don’t think a foot injury. That’s why I think the benefit of a personal injury attorney that can come in and say, “Yes, the insurance company really is trying to take advantage of your lack of knowledge of the law by trying to put your entire case on discount and that’s not right.” Then, Ryan, exactly correct. You have an expert to say that and I don’t know what kind of expert would that be.
Ryan Truesdale:
Well, the thing that came to mind would be somebody more with a physics type background. So like, a force expert that’s going to say, “Well, these factors…” I’m going to be very uneducated on this because I know very little about physics, but it’s going to be whatever forces were applied here and that would then show it could have affected this part of the body, not this part of the body. Likewise, a doctor can speak to that, just about the bones and the way that the fracture would’ve occurred, and what forces could have been on that also.
Jon Groth:
Was it more likely than not that the forces exerted caused X or Y injury? I think you’re exactly correct. There was a trial we had not too long ago where there were multiple experts that could have been called, one expert that was called about how the accident happened and whether somebody’s actions… In this case, it wasn’t seat belts, but whether somebody’s actions in where they were a pedestrian on the street, whether that caused injuries or not. I think the use of experts in situations like this is really important, and trying to gather evidence sooner rather than later is even more important so you understand what’s going on. Were there any other situations that you were looking at, Seth? Was there anybody else that called and talked about this?
Seth:
Are you looking for specific cases without seat belt or any other interesting things that came in?
Jon Groth:
Yeah, just people who called in about seat belt defenses, was it rear end accidents? Was it a side swipe? What kind of facts were…?
Seth:
Two of them that I had come in were rear end cases and then one was a side swipe, where in the rear end cases they were hit from behind and thrown forward. Because of not having a seat belt on, that might be a easier claim for defense to make that was why the injuries were caused.
Jon Groth:
Yeah. Yeah. I think that’s the exact case that we would want to get involved in as soon as possible, so we can understand what happened and then make sure that we’re presenting really the best evidence to the insurance company. The part that I just get frustrated about is, if the at fault driver wouldn’t have been driving negligently, this person wouldn’t have been injured. I’ve had situations where somebody, an expert and others, have said that because they weren’t wearing a seat belt, they were less injured. Which is kind of illogical, and I think certainly there’s always the exception to every rule. But these are facts, scenarios. These are situations that by calling us sooner rather than later, hopefully we can provide them a service. Were these accidents that happened just recently?
Seth:
Yes. They were recent accidents. I think it’s also very key to note that just because you were not wearing your seat belt doesn’t mean that your case will be thrown out.
Jon Groth:
Exactly correct. Yeah.
Seth:
It is admissible evidence, which of course, the defense will probably try to use against you. But, it is extremely important to note that that 15% cap is in place and that your case cannot be thrown out simply because of the seat belt factor.
Jon Groth:
Yeah. That’s a very good point. I guess I always think about educating potential clients, and there have been many times when people have called and said, “I don’t think I have a case because of X, Y, or Z.” We had somebody actually just today who didn’t have a documentation, I’ll say, and this person thought they did not have a case. Well, that’s not the law in Wisconsin. You can be injured and you don’t have a driver’s license. You can be injured and, well, you don’t have to be even a citizen. You can be here on a visa, you can be here on whichever kind of documentation you need to be here, or even you can be here without documentation. If you’re injured by somebody else’s negligence, the insurance company has to pay for your damages.
Ryan Truesdale:
That made me think of a case that I’ve worked on too, where it was a head on collision. Client was engaged in… They’re delivering newspapers, basically. Because they were reaching out the window, they took the top part of the seat belt, put it behind the head so then they could reach. I know that defense wanted to apply the seat belt cap there and I argued against it as, no, the seat belt was on. The injuries wouldn’t have been as severe if it wasn’t a head on collision. Ultimately, they backed off of the entire cap and we got 0% as opposed to the 15% cap on it. So, there’s certainly other circumstances that just because maybe somebody might be asserting there’s no seat belt, well, not really. It was on.
Jon Groth:
Yeah. That’s a good point because the insurance company early on, and the insurance company probably throughout the entire case, is going to always argue their best scenario. They’re going to say, and even be dishonest and say, “You don’t have a case. You don’t have a claim because you were doing something wrong.” It would not be the first time that an insurance company lied to somebody about what their rights are. Or maybe not outright lied, but alluded to the fact that their rights were something different than they actually are. A lot of times, what I see is that the insurance company might be… Well, the insurance adjuster, not the attorneys. Kind of early on, the insurance adjuster might be in a different state. The laws in Georgia, the laws in DC, the laws in Nebraska are different than the laws in Wisconsin, and if this insurance adjuster is used to applying those state’s laws, I don’t care because that’s not what the law in Wisconsin is. So, very interesting.
Jon Groth:
What else should we talk about? Is there anything else about jury instructions? I know you had a bunch of cases here. Just want to start reading some case law? That’ll be fascinating.
Ryan Truesdale:
Yeah. People are going to be captivated by this again.
Jon Groth:
What? Yeah. Boy, that’ll be kind of hilarious if I just started reading. It would be great to create content on our website because-
Ryan Truesdale:
Could be ASMR.
Jon Groth:
Yeah. It’ll be good ASMR. Okay. What does ASMR stand for? Do not get your phones out. I don’t know, by the way. So, you could make up anything and I wouldn’t say it’s right or wrong. I wouldn’t be able to comment.
Seth:
I know I looked it up the other week when we were talking about it, but I have no idea. I can’t remember. It didn’t stand for what I thought it stand for.
Ryan Truesdale:
Yeah. I remember it’s more complex. It’s like audio sensory something something.
Jon Groth:
ASMR. A, audio sensory. What would the M stand for? Audio… ASM.
Ryan Truesdale:
It’s going to be something ridiculous, like motor neuron or something.
Jon Groth:
Oh, that does sound right. Is that right? Something like that.
Seth:
I think that is probably close.
Ryan Truesdale:
Yeah. It’s way more complicated than it needs to be for… There we go. I’m feeling those vibes right now.
Jon Groth:
All right, fantastic. We are at our about 15 minute goal here, so we’ve met that. Thank you very much. Let’s conclude this and we’ll catch you next time. Thank you for the information, Seth. This is a good topic. I appreciate it.
Ryan Truesdale:
Thank you.