Legal Question in Personal Injury in Colorado

Re: Seat belt defense applicable when seatbelts not required

There is no "seat belt defense" in Colorado that serves as an affirmative defense on which an insurance company can rely to bar your childrens' claims in a case such as this. Rather, it is but a mitigating factor that could result in the jury being instructed on contributory negligence - a doctrine that requires a jury to apportion fault between the parties and reduce an award of damages commensurate with that apportioned fault. In other words, if you won a $2 million jury verdict, but the jury found your children were 10% at fault because they were not wearing their seat belts (AND, it must be conclusively established at trial that had they been wearing seatbelts, their injuries would not have occurred or have been as grave), your damages award would be reduced by $200,000 to a total of $1.8 million.

Given the nature of this accident and the injuries sustained by your children, I strongly encourage you to retain counsel to represent you and your children. Insurance companies rarely, if ever, pay full and fair settlements to nonrepresented individuals. The fact that they are trying to convince you that your children have a weak claim because they weren't wearing seatbelts should be glaring evidence of the fact that they are not working with you in good faith.

I am more than willing to discuss this matter with you in more detail and, if we are unable to assist you ourselves, I would be happy to give you the names of several other excellent firms that do handle this type of work. Our Denver office number is 303-260-6424.

Very truly yours.

FOLLOW UP TO 1/14/2002 REPLY

As a brief addendum to my earlier January 14th response to your question, there is an informative two-part article in today's and yesterday's Denver Post relating to the safety and legality of school and church groups' useage of 15 passenger vans. We saved copies of the articles for our own files, and would be happy to fax or email the articles to you if you would like. I think you might find them quite interesting and useful in your dealings with the insurance company.

Very truly yours, PWT

Re: Seat belt defense applicable when seatbelts not required

This is not a sufficient amount of information in your e-mail to completely answer your question. Whose fault was the accident? A driver of a vehicle other than yours?

As for the seatbelt defense, it will not exonerate a defendant entirely from the injury and pain and suffering claims. A defendant might get a jury instruction on contributory negligence (i.e., an instruction that, if the jury thinks the driver of the vehicle or the person responsible for the children was negligent in not having the children wear seatbelts and that that negligence was a part of the cause of the injury, the jury must apportion fault between the defendant and the party responsible for the children. To assure a 100% recovery for the children, a lawsuit to recover damages should be brought by a parent or guardian who was not involved in the accident in the children's behalf and might even join the person responsible for the children (bringing in a second insurance policy) to completely cover damages. The children probably would not be found to have any negligence for not wearing their seatbelts (depending a bit on their ages.)

In any event the short answer is that failure to wear a seatbelt should at most be a mitigating factor that might reduce damages available by some percentage that a jury might allocate. It should not be a bar to recovery, even where the law does require the use of seatbelts. Even there it should only be a mitigating factor.

Given the nature of the damages you described, this is not a case that you should be handling without counsel. The potential damages may be large, which means the insurance company will do everything it can to persuade you to settle before obtaining counsel and for less than you should. Although you did not give enough information to thoroughly evaluate the liability issue, I strongly urge you to retain counsel on this matter rather than dealing with the insurance company and their attorneys yourself.

I am licensed in Colorado and do handle cases there. I would be happy to discuss this with you in a free initial consultation if that would be helpful. However, whether you call me or another attorney, you should seek legal counsel to assist you with this matter. I hope this response has been helpful.