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How Can the “1% Rule” Hurt You After a Car Accident?

North Carolina is one of the few states that recognizes a defense called contributory negligence.  Many people refer to contributory negligence as the “1 % rule”.  This defense allows an at-fault driver to avoid any financial liability to you after causing an accident if they can show that you were even 1% at fault for causing the accident.  With such a low standard to avoid liability, insurance companies get very creative in coming up with arguments to suggest that you were at least 1% at fault. 

The at-fault insurance company will often call you after a car accident and will ask to take your recorded statement.  This is all presented as “standard procedure”, so most people don’t see what is really going on.  The insurance adjuster’s goal in taking your statement is to get something, anything, out of you that can be argued to suggest that you were at least 1% at fault for causing the accident.  How do insurance companies typically build a contributory negligence argument to deny your claim?  There are plenty of ways. 

One way that insurance companies argue contributory negligence is to pin you down on the timing of events surrounding the accident.  Most people don’t have a stopwatch going in the minute before an accident, so when asked about timing, most people are giving the insurance company guesses.  After the insurance company has your recorded statement explaining that you observed the at-fault driver, however long before the collision (or that the at-fault driver would have been visible for however long had you looked), the insurance adjuster will argue that you had sufficient time to avoid the accident had you acted in a reasonable and timely manner. 

Example of Insurance Adjuster Denying Liability Based on Timing of Events:

You are sitting at a four way stop with traffic lights in all directions.  You are stopped at a red light.  Your light turns green, so you accelerate into the intersection.  Once in the middle of the intersection, another driver runs a red light and hits the driver side of your car.  Is the other driver at fault for running the red light and hitting you?  Of course!  However, the insurance adjuster will ask questions about whether you looked to see if their driver was approaching the intersection before you accelerated.  (even though you had the green light!)  The insurance adjuster will also ask about your view of traffic approaching from their driver’s direction.  How far could you have seen their driver had you looked that way before accelerating? 

If the adjuster can take your answers and cobble together an argument that you had enough time to observe the at-fault driver (before the collision) and not hit him, they will probably deny your claim.  Even though the other driver ran a red light, and you waited for your green light before entering the intersection, the insurance company can refuse to pay your claim based on contributory negligence.  If the insurance adjuster can make this argument, they do their little happy dance, they kick up their heels and they deny your claim for compensation. 

Example of Insurance Adjuster Denying Liability Based on Distances:

You are driving down a two-lane road.  There are solid yellow lines separating the two lanes of travel.  This is a no passing zone.  Another driver is headed toward you in the oncoming lane of travel.  Even though this is a no passing zone, the other driver swings into your lane of travel and attempts to pass the car in front of him.  In making this move, the other driver slams into the front of your car.  Is the other driver at fault for attempting to pass over a double yellow line?  Of course!  So how will the adjuster try to use the 1% rule to deny your claim for damages?

The first thing the insurance adjuster will do is to try to box you in during a recorded statement.  They will ask you questions about distances.  “How far away was our insured driver when you first saw him cross the double yellow line”?  The goal of the insurance adjuster is to put together an argument that there was sufficient distance between you and their insured driver that you could have swerved to avoid a collision.  Huh?  That’s right.  The insurance company can tell you with a straight face that even though their driver was clearly at fault, that they will not agree to pay your damages because, well, you should have gotten out of the way before their driver hit you! 


The North Carolina Contributory Negligence law (1% rule) often leads to unfair results.  The best way to guard against an unfair result is to work with an attorney at the BEGINNING or your case.  Once you start talking with the insurance company on your own, you are just inviting them to find reasons to deny your claim.  If you want to make sure your rights are protected, call Bradley Law Group for a free consultation BEFORE you start speaking with the insurance company.      

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