A parked car was in the fire lane when I was backing up. It was dark and I didn’t see them. I assumed there was no one in the fire lane because you can’t park there legally.
We shared insurance information and reported this to them. I am at fault because the car was parked. However, in Virginia, we have a contributory negligence claim. If the other party is even slightly negligent, they can not recover at all in court. I researched theis and saw conflicting responses. Some sources that the illegal parking carries a degree of negligence and others said it doesn’t.
I shared this with the insurance company and they said the contributory negligence doesn’t matter and said that I would be held 100% at fault and my rates will increase.
I am at fault, but do I have a contributory negligence defense?
It is nearly impossible to put any negligence on a stationary object like a parked vehicle. If the vehicle was there, you should have seen it. Never "assume" anything, as you know what they say about assume.
It is true that Virginia is a Contributory Negligence state (one of the very few left in the U.S.), but I personally do not see that you will be able to prove even 1% negligence on the owner of the parked vehicle.
In any event, you have to understand that you have transferred your right contractually to your insurance carrier (your auto policy is a binding contract between you and them) by virtue of the policy wording giving your insurance company the right to decide who is at fault for an accident. By the terms of the contract, you have to abide by the insurance companies decision. You are going to have to take your lumps here and be more watchful the next time.
Please do not message me for further advice or call my former law firm if you have any further questions. If you are in need of an attorney to assist you, please search for another attorney in the jurisdiction involved in your case, as I am now retired, and my former law firm is no longer handling these types of cases. I am active on AVVO and answer questions only as a public service at this point.
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There is no indication from the question that this involves personal injury so I updated it to Car Accidents. In Virginia, if you are even 1% negligent you can not recover for negligence.
Let the insurance companies sort it out. It sounds like an accident and not worth spending days and thousands in court on the chance a judge would rule in your favor.
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