It is common for Auto and Special dockets to be filed for damage to a parked or stopped vehicle with more than one potential tortfeasor. Property losses often involve an innocent party who has suffered damage because of a condition over which he or she had no control, such as fire and water losses involving neighboring condominiums or businesses. 

Filers often try to apply the innocent position of an applicant insured as leverage for recovery. It is important to recognize that innocent parties may be entitled to recovery, and that recovery can only be awarded on the basis of arguments and evidence that support negligence on the part of one or more of the respondents.

Some questions that may aid in determining if negligence is supported are:

• Does the evidence show that the respondent(s) failed to exercise the proper duty of care?
• Does the evidence show that the respondent(s) knew, or should have known, that the cause of loss posed a hazard prior to the occurrence?

Remember the standard for support of negligence is by a preponderance of the evidence. That is to say, the evidence must show that the theory of liability proffered by the applicant is more likely than any other possible cause argued by a respondent.

While it may be abundantly clear that an applicant’s insured did not contribute to their own damages in any way, the evidence must still show that if not for the negligence of the responding party(ies), the damages would not have occurred. In other words, negligence must still be proven.