Comparitive Negligence: Where and When Does It Apply

This principle of liability allows that there may not be just one person who caused an accident. It is possible that in, for instance, a two vehicle accident, both parties may have been negligent, or at fault.  [Note that adjusters & insurance companies don’t often use the term ‘at fault’; the legally correct term is ‘negligent’ and this concept allows that more than one party may have actually been negligent in their actions.]

Most states use a “modified” version of comparative negligence. Only thirteen states use the principle of “pure comparative” negligence. This principle of liability allows that if a person is even deemed to be 99% negligent, he can still recover 1% of his damages. This is not the kind of situation that you normally encounter.  Given all the different actions, movements, placements of vehicles, evasive actions, faulty evasive actions, and other numerous factors involved in an accident, it can become difficult to recognize a mere 1%, but not impossible.

For the states which do recognize and apply ‘comparative negligence’, they apply either a rule of “50 percent bar” or a rule of “51 percent bar”.  Simply, these numbers mean that if your adjuster, in a state that applies the rule of 50% bar, finds you to be at least 50% negligent, you cannot recover any of your damages; you are barred from recovery of your damages.  Your 50% of the negligence which caused this accident bars you from recovering any of your damages. There are eleven states that apply a 50% bar when evaluating negligence.

If, however, you are in a state that applies a rule of 51% bar, you can be considered to be up to 50% negligent, and still recover that percentage of your damages. If, however, you are deemed to be at least 51% negligent, you are barred from recovery. Twenty-two states apply the principle of ‘51% bar’ when determining recovery.

Who decides these percentages?  The handling adjuster.  In cases where each party is insured, the two adjusters will discuss the details of the accident and, if they agree that comparative negligence applies - that is, each party contributed to the basic cause or causes of the accident – they negotiate an agreement as to the percentage of liability (fault) to each party. If they cannot come to an agreement, they can file arbitration, where arbitrators will review evidence and contentions submitted by each carrier and make a determination as to causation.

Where are the missing seventeen states? There are also states that apply a principle of ‘pure contributory negligence’, which allows that no damaged party can recover from another if they are even 1% negligence.  Four states plus the District of Columbia practice this rule.

The remaining thirteen states recognize the ‘pure comparative negligence’ rule:  a damaged party can recover damages, even if they are up to 99% negligent, but their recovery is reduced by the percentage of their own percentage of negligence.

I have found that these comparative principles do not seem to be used as often as they actually apply, based on the evidence. If you believe you have a claim where comparative negligence can and should be applied, do not hesitate to discuss that with your adjuster and/or the adjuster for the other driver.