Every insurance professional needs to understand the tort of negligence. The following video is a primer.
Negligence is the failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances. Negligence is always accidental. It is different from intentional torts like assault, battery or trespass or from crimes.
The elements of the tort of negligence are:
- a duty;
- breach of that duty by want of ordinary care; and
- the breach of the duty causes harm to a person or the property of a person.
The duty of care is a requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would use. If a person’s actions do not meet this standard of care, then the acts are considered a breach of the duty of care, negligent, and any damages resulting may be claimed in a lawsuit for negligence.
BREACH OF DUTY
The second step is to determine whether the duty was breached. Did the person insured do something that was contrary to the duty?
Third, it must be determined if the breach was the proximate or legal cause of the injury.
A cause is a “proximate cause” if “the defendant’s conduct was a substantial factor in bringing about the injury.”
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts