Susan - I can understand your argument.
I am assuming the passenger who was ejected was injured a great deal more then any of the other people in the car. Did any of the other passengers sustain serious injuries? If so, what were these injuries?
Was the ejected party over 18? If not then it would be the driver’s responsibility to ensure the all passengers were properly restrained (at least that is the case in my state).
If the passenger was over 18 then they were negligent for not wearing a seat belt and I am pretty sure the lawyers working for your insurance company will argue that point (since they do not want to pay out the maximum either). Have you contacted your insurance company to find out what they are paying? Considering insurance companies don’t want to pay any more then they have to, they will also likely fight this claim.
I should say this – I don’t have a law degree (but then again I don’t think many of the so called ‘lawyers’ on this site do either) but, I seriously doubt that the person will get a judgment of $500,000 for his injuries. Broken bones and a torn spleen do not warrant that kind of judgment, especially if the injuries were likely due to being ejected (not the accident itself). I would definitely get a lawyer though since you have only minimal insurance coverage.
Unfortunately, some of the posters on this site give decent advice but then have to make the OP feel terrible about their actions (you have to understand these posters are so smart and perfect, they never make mistakes). But, you also have to wonder why they spend so much time giving out free advice. Please either PM me or post what happens with your case - best of luck!
Here are some articles I found which might be good to read:
http://injury.freeadvice.com/injury_help.php/140_181_921.htm
http://www.netlawlibraries.com/jurinst/ji_005.html (go down to bottom of page)
http://www.dmv.ca.gov/pubs/hdbk/pgs46thru47.htm
http://www.nhtsa.dot.gov/people/inj.../BUA_WEBSITE/Archive-04/Cases/California.html
http://www.napil.com/PersonalInjuryCaseLawDetail38113/Page1.htm (sort of outdated but gives example of how verdicts can be awarded)
http://www.wcl.american.edu/journal/lawrev/45/cook.cfm
The issue of pre-accident mitigation also has arisen in the so-called "seat belt defense" cases.63 In those cases, the contention is that the plaintiff, who was not wearing a seat belt, would not have been as seriously injured had he been wearing one, and that the damages, therefore, should be reduced.64 A number of courts have adopted such a rule.65 Accordingly, it has become apparent that the courts are advancing a fundamental principle of personal responsibility: the potential plaintiff's obligation to take steps prior to an accident to reduce or eliminate the adverse impact of the subsequent loss.
A leading "seat belt defense" case is Spier v. Barker.66 In Spier, the New York Court of Appeals held that
nonuse of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider . . . in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain.67
The opinion further explained that: "
n our opinion, the seat belt affords the automobile occupant an unusual and ordinarily unavailable means by which he or she may minimize his or her damages prior to the accident."68 The court was persuaded that, unlike other types of injured plaintiffs, "an automobile occupant may readily protect himself, at least partially, from the consequences of a collision."69 The court, therefore, recognized that a potential plaintiff has a significant responsibility with regard to his or her own damages, even to the point of planning in advance how to eliminate or reduce those damages.70
The Supreme Court of Florida has also adopted the mitigation approach to seat belt cases, observing that the result is dictated by that court's "underlying philosophy of individual responsibility."71 Moreover, an Arizona court, in recognizing a seat belt defense based on a mitigation theory, observed that "the victim of a tort has the duty to exercise due care and act diligently to protect his or her own interests."72 The court disclaimed any novelty in its approach, stating that "[t]he principle that a plaintiff must undertake reasonable measures to protect his own interest is a paradigm judicial principle of historic origins."73
