Subrogation professionals must become familiar with an increasingly used defense in the litigation of auto insurance subrogation cases. Even if the insured is totally free from fault in the operation of the insured’s auto, not wearing a seat belt could result in a reduction of the damages the insured and/or subrogated auto carrier will be allowed to recover. In some states, through the interplay of the Made Whole Doctrine or other state statutes, this defense could have an affect on a carrier’s rights of subrogation or reimbursement.
Every state except New Hampshire requires adults to wear seat belts while traveling in a motor vehicle. Lap belts have been mandated on new vehicles since 1968. Rear outboard lap belts have been required since 1989, and shoulder harnesses since 2008. Subrogation professionals, like trial lawyers, must come face to face with an increasingly used defense within the civil justice system. In cases involving auto accidents, even if the plaintiff/insured is totally free from negligence, not wearing a seat belt could result in a reduction of the damages the plaintiff will be allowed to recover. And with increasing frequency, it is being used by liability adjusters as an argument for significantly reducing offers of settlement. Trial lawyers are also using the argument offensively and with some success.
Seat Belt Defense Generally
The seat belt defense has been integrated into the comparative fault system of many states to distribute equitably the costs of first and second collision injuries on the basis of their respective causes. “First collision” injuries, of course, are the injuries resulting directly from an insured being rear-ended by a tortfeasor. “Second collision” injuries are those injuries which result inside the plaintiff’s vehicle which would not have occurred had the insured been properly wearing his or her seat belt. With a growing number of state mandatory seat belt use laws, we will see a proliferation of the seat belt defense in the coming years.
Thirty (30) states currently have no seat belt defense in place: Alabama, Arkansas, Connecticut, Delaware, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wyoming. Twenty six (26) of these states actually have laws prohibiting evidence of non-use of a seat belt – all except Idaho, Indiana, and Tennessee. In most of these states, comparative fault or contributory negligence laws are in places that allow the jury to compare the negligence of a plaintiff as compared to a defendant. However, for example, in Maryland, state law requires that occupants of motor vehicles wear seat belts. Md. Code Transportation § 22-412.3. Nonetheless, Maryland does not consider failure to use a seat belt as contributory negligence. The accident, they feel, was caused by the negligence of the driver’s operation of the motor vehicle – NOT the failure of the plaintiff to wear a seat belt.
On the other hand, fifteen (15) states do have some mechanism in place which could result in reduction of plaintiff’s damages for not having a seat belt on at the time of an accident: Alaska, Arizona, California, Colorado, Florida, Georgia, Iowa, Michigan, Missouri, New Jersey, New York, Ohio, Oregon, West Virginia, and Wisconsin. These states rationalize that while the accident itself may have been caused by the driver’s negligence, the actual injury for which damages are sought is often exacerbated the “second collision” which occurs within the plaintiff’s vehicle as a result of his/her not wearing a seat belt.
These 15 states have adopted the seat belt defense, some by common law with no statutory approval, some by case decision, and some specifically by statute. These states have provisions for allowing the introduction of evidence that the plaintiff was not wearing a seat belt in order to affect the allocation of fault by the jury or have a more structured statutory scheme that assesses fault or limits the percentage of fault that can be attributed to the failure to wear a seat belt. Clearly, a driver not wearing a seat belt and injured when his car is rear-ended by an inattentive driver can’t conceivably be 100 percent at fault for his injuries, but that could be the result in some states.
Two (2) states, Hawaii and North Dakota, do not have a specific statute addressing the seat belt defense, but have considered it and indicated they might move toward one. The North Dakota Supreme Court, for example, has indicated that it would probably be inclined to accept the seat belt defense. Halvorson v. Voeller, 336 N.W.2d 118 (N.D. 1983).
Three (3) states, Indiana, Mississippi, and Nevada, do not have fully developed seat belt defense laws, because no statute or case specifically prohibits application of the seat belt defense based on a comparative negligence or failure to mitigate damages theory. State v. Ingram, 427 N.E.2d 444 (Ind. 1981); Rhinebarger v. Mummert, 362 N.E.2d 184 (Ind. Ct. App. 1977); M.C.A. § 63-2-3 (1997); Roberts v. Grafe Auto Co., Inc., 701 So.2d 1093 (Miss. 1997).
There are a number of ways the seat belt defense comes into play – depending on the state. Usually, it arises under a “comparative negligence” or a “failure to mitigate damages” theory. Florida is an example of the former. F.S.A. § 316.614(9) (West 1997); N.Y. Vehicle and Traffic Law § 1229-c(8) (McKinney 1997). New York is an example of the latter. Spier v. Barker, 323 N.E.2d 164 (N.Y. 1974). In New York, as in most states which allow it, the seat belt defense can be submitted to the jury only if the defendant can demonstrate, by competent evidence, a causal connection between the plaintiff’s non-use of an available seat belt and the injuries and damages sustained. In Oregon, if there is evidence from which the jury might conclude that the plaintiff’s injuries were exclusively or primarily the result of his/her failure to wear a safety belt, the jury can find that such failure to do so is not reasonable under the circumstances. Little guidance beyond this is given. Dahl v. BMW, 748 P.2d 77 (Or. 1987).
The seat belt defense is controversial and is not always fair. To ameliorate its potential harshness, some jurisdictions affirmatively limit the percentage of fault which can be attributed to an otherwise-blameless driver who wasn’t wearing a seat belt. In Missouri, only one (1%) percent can be attributed to the person who failed to use a seat belt. Mo. Rev. Stat. § 307.178(4). In Iowa, Michigan, and Oregon, the maximum percentage is five (5%) percent. I.C.A. § 321.445(4) (West 1997); Mich. Comp. Laws Ann. § 257.710(e)(6) (West 1997); O.R.S. § 18.590 (1996). But, perhaps the state with the most-litigated and most clearly defined seat belt laws is Wisconsin, where the percentage is a statutory fifteen (15%) percent. Wis. Stat. § 347.48(2m)(g) provides as follows:
(g) Evidence of compliance or failure to comply with par. (b), (c), or (d) is admissible in any civil action for personal injuries or property damage resulting from the use or operation of a motor vehicle. Notwithstanding s. 895.045, with respect to injuries or damages determined to have been caused by a failure to comply with par. (b), (c), or (d), such a failure shall not reduce the recovery for those injuries or damages by more than 15%. This paragraph does not affect the determination of causal negligence in the action. The fact that jurisdictions have dealt with the seat belt defense in such varying ways is testament to the defense’s controversial nature. This paper will outline some of the ways to combat the questionable and damage-reducing seat belt defense. Part I of the paper will discuss how to legally combat the defense in jurisdictions where the law may still not be completely settled on the issue. Part II will discuss how to factually combat the seat belt defense in jurisdictions where it does exist.
In California, juries are allowed to hear evidence of seat belt non-use to prove comparative fault. California Vehicle Code § 27315(i), provides that “In a civil action, a violation of [the seat belt use law] does not establish negligence as a matter of law or negligence per se for comparative fault purposes, but negligence may be proven as fact without regard to the violation.” Although a violation of the California seat belt statute does not “constitute negligence as a matter of law or negligence per se,” the statute does not “totally ban use of the seatbelt statute as a factor in determining negligence.” Housley v. Godinez, 4 Cal. App.4th 737, 746 (1992). In California, for purposes of determining comparative fault, not only may the jury learn of a plaintiff’s failure to use his or her seat belt, the jury may also decide what weight, if any, to give the seat belt use statute in determining the plaintiff’s standard of reasonable care.
The applicability of a seat belt defense is not completely settled in many jurisdictions including Hawaii, Indiana, Mississippi, Nevada, and North Dakota. Some states seemingly cannot make up their mind on the issue. In Kentucky, § 189.125(5) overruled Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987) so that now Kentucky does not employ the seat belt defense. In Ohio, § 4513.263(f) overruled Vogel v. Wells, 566 N.E.2d 154 (Ohio 1991) so that now Ohio does not allow for application of the seat belt defense. Furthermore, the following states have adopted the seat belt defense, but only by common law with no statutory approval: Alaska, Arizona, Georgia, and New Jersey. If you are practicing in a jurisdiction where seat belt defense law is not completely settled, or where it is settled only by common law, the following arguments may help you avoid a damaging seat belt subrogation reduction:
- Use of a seat belt is not technically the proximate cause of the accident in question and can’t be considered comparative negligence because your insured’s failure to wear his or her seat belt did not help to actually cause the accident itself in any way. The traditional application of comparative negligence is that it applies only when the plaintiff’s misconduct is the “but for” cause the accident, not the “but for” cause of the damages. Failing to wear a seat belt may have made the plaintiff’s injuries worse, but it certainly did not help to cause the accident itself. Stress that the failure to wear a seat belt cannot logically be considered comparative negligence.
- Use of a seat belt does not have a bearing on the doctrine of mitigation of damages. The traditional mitigation of damages rule states that a plaintiff has a duty to mitigate his or her damages after an accident has already occurred. Obviously, it would do a plaintiff no good to secure his or her seat belt after a car accident. Thus, failure to wear a seat belt cannot accurately be described as a plaintiff’s failure to mitigate damages either.
- The seat belt defense runs counter to the traditional tort doctrine that defendants take their plaintiffs as they find them, also known as the “egg-shell” plaintiff’s doctrine. The plaintiff would not be assessed a percentage of fault if he or she had exceptionally brittle bones that allowed fractures to occur from a minor impact – why should it be any different with the “seat-beltless” condition of the insured in which the defendant found the insured?
- The insured should not have to anticipate other peoples’ negligence.
- A jury will have trouble speculating about what kind of damages to award a plaintiff if the seat belt defense is allowed and speculation should not play a role in causation. In other words, if the seat belt defense is asserted, juries will essentially have to guess what damages a plaintiff would have sustained with seat belt use as compared to what they actually sustained. Even with the help of experts, this kind of calculation could become nothing more than mere guesswork.
Subrogation and the Seat Belt Defense
The seat belt defense can be used to thwart legitimate subrogation interests in a number of ways. Obviously, a defense attorney or third-party liability adjuster can claim he or she is entitled to a significant reduction in your subrogation damages due to the failure to use a seat belt. They can also claim that they were not made whole due to the defense’s application.
If you are subrogating in one of the 15 states that allow seat belt evidence to reduce a plaintiff’s damages, it is important to know whether the insured was actually wearing a seat belt. It should be one of the first questions you ask. It is also relevant what kind of seat belt was being worn. To minimize the effect of the seat belt defense, consider the following:
- Contrary to the assertion that government tests verify the efficacy and injury-reducing benefits of wearing a seat belt, those tests are generally flawed and cannot universally be applied to everybody. Many of those tests are performed using anatomical dummies which represent only 50 percent of the population and are generally only valid as to 5’7″, 165-pound males. Also, note that the government tests are performed with the seat belts snugly secured around the dummies’ waists so as to get the maximum benefit out of the belts. Since the average person does not use a seat belt in this way, the tests cannot be representative of how seat belt use would have affected the average person, including your client, who wears his or her seat belt less formally. There is no seat belt defense if the insured was wearing a seat belt, but wearing it loosely.
- If the insured is shorter, he or she may sit closer than the average person to the steering wheel. A shorter plaintiff, even if they wore a seat belt, might have sustained damages that an “average” person would not have sustained. Also consider that if the insured is physically heavier than normal, even if they wore a seat belt, it may have pushed the seat belt system past its maximum limits thereby making it less effective, or even ineffective.
- If the insured was wearing a seat belt, but suffered injuries consistent with not wearing a seat belt, consider the possibility of a seat belt defect. Some seat belts have a “Window Shade Device” which can make seat belts less effective. In some cases, even if a seat belt was worn, the aftermath of an accident may appear as though no seat belt was used. The “Window Shade Device” allows the wearer of the seat belt to introduce slack into the belt. Slack can occur either intentionally or accidentally by pulling on the belt. If the insured leans forward to adjust the radio, the “Window Shade Device” may introduce slack into the belt that never re-tightens. Slack in a seat belt system reduces the effectiveness of the seat belt.
- Quite often, only lap belts are available in the back seats of vehicles. If the insured was only wearing a “lap belt,” it is possible that the insured was more severely injured because of the seat belt use. This is often indicated by the existence of internal injuries.
The applicability of the seat belt defense remains a controversial issue among lawyers and lawmakers. This controversy presents opportunities to argue around the application of the doctrine. The very fact that you are familiar with the seat belt defense, its applicability in a particular jurisdiction, and some rather cutting-edge arguments with which to diffuse it, will go a long way in bolstering your negotiating strength and your overall subrogation recovery. To see a chart that discusses and details the applicability and/or existence of the seat belt defense in all 50 states, click HERE.
Jacob Coz, co-author and summer legal intern at Matthiesen, Wickert & Lehrer, S.C.