I recently was driving on Interstate 495, in freezing rain, when I was passed by a car doing the sixty-five mile per hour speed limit. Fortunately, nothing bad happened. This is a particularly good thing, because had that car have lost control and hit me, I have no doubt that the insurance adjuster would have told me that it was “an act of God” and could not have been helped. The reason that would have been a problem is because I believe that it is not helpful to yell at insurance adjusters in general, and especially not at the beginning of a case. However, when an insurance adjuster makes an argument that asinine, and they do it all the time, it becomes hard even to follow your own rules.
Had that car have lost control and hit me, it would not have been “an act of God” which could not have been helped. It would have been an act of negligence. The “rules of the road” are fairly straightforward where weather conditions are concerned. A driver has a duty to maintain a reasonable speed under the circumstances. Just as it is unreasonable to drive sixty-five miles per hour in stop-and-go traffic at rush hour, it is unreasonable to drive sixty-five miles per hour during freezing rain. Speed limits are set to determine what is the maximum safe speed under ideal conditions. Think about how miserable we would all be, and how many speeding tickets would be handed out, if speed limits were set for the maximum safe speed under the worst possible conditions. Most interstates in New England would have a speed limit of twenty or thirty miles per hour. Such a speed limit would be absurd. As such, the speed limit is set for ideal conditions, and drivers are expected to slow down when conditions become less than ideal.
Similarly, there are all kinds of rules of thumb for what is a safe distance to maintain between two vehicles. However, if the roads are slippery, then those rules need to change. If it is not possible to stop your car during an ice storm as quickly as you could stop your car on dry pavement, then you need either to slow down or to put a greater distance between you and the car in front of you, so that you can stop in time if the car in front of you stops. Accident law is based upon the concept of “reasonableness”. What would a reasonable driver do in that situation? As the situation changes, what is reasonable changes. As such, what is perfectly reasonable on a dry day, may be completely unreasonable during an ice storm. The insurance companies and their adjusters know all of this. They know that this is the law, and if properly pushed, they will eventually back down. Unfortunately, that does not stop them from trying to argue that it was the ice’s fault and not the driver’s. It is one of the frustrating things that we, as accident lawyers, have to deal with. It is one of those issues where we can give the insurance companies no quarter, because they are simply wrong. Just to demonstrate how absurd the insurance companies can be, I have actually had a few adjusters, attempt to “compromise” by saying the accident was fifty percent the fault of their operator and fifty percent the fault of nature. The good news is that I do not scream and yell in response to such an argument. The bad news is that it is hard for me not to laugh out loud. Since negligence is based on “reasonableness”, nature cannot be negligent. While Mother Nature may seem cruel and vindictive at times, nature is simply nature. On a good day, I will remind an adjuster that in Massachusetts we have “joint and several” liability, which means that if you are even one percent at fault for an accident, then you are on the hook for the entire accident along with the other parties that caused the accident. I will simply offer the adjuster to settle the case for its full value and to assign to the insurance company my claims against nature. It is a nice flippant reply to a stupid argument, and commonly puts an end to a discussion that should never have had a beginning.