Personal injury law might seem conceptually simple, at least on the surface. Find out who is at fault for an accident, and impose liability on them for all the losses that their irresponsible behavior caused. However, reality intrudes when you consider that in many cases, including most car accidents, fault is shared by two or more parties. So, what happens then?
Dividing Compensation When More Than One Party Is at Fault
The old answer to the question of how to divide compensation when more than one party was at fault was to apply the concept of contributory fault, also known as contributory negligence.
Under pure contributory negligence, any party, even when one percent at fault, is disqualified from seeking damages. Only a few jurisdictions – Alabama, Maryland, North Carolina, Virginia, and D.C. — still apply the harsh and outdated doctrine of contributory fault.
South Dakota almost applies contributory fault: it prevents a plaintiff from recovering damages if their own negligence was any more than “slight.” Every other US jurisdiction, including Florida, applies some form of comparative fault—pure comparative fault, modified comparative fault with a 50% rule, and modified comparative fault with a 51% rule.
Pure Comparative Fault
“Pure” comparative fault is the original form of comparative fault. In a pure comparative fault state, even if you share 99% of the blame, you can potentially recover compensation if another party shares the other 1%.
In a pure comparative fault case (that goes to trial), the court will determine the total damages sustained by each party. It will then assign a percentage of fault to each party.
Finally, the court will assess damages based on each party’s percentage of fault.
An Example of How Damages May Be Allocated
Let’s imagine a DUI accident. Suppose Party A suffered $60,000 in damages. Let’s further suppose that Party A was 15% at fault, while Party B (the intoxicated driver) was 85% at fault.
To factor in Party A’s 15% of fault, they will bear (15% x $60,000) = $9,000 of their own damages. Party B will be required to pay the remaining damages ($51,000).
Modified Comparative Fault With a 50% Bar To Recovery
You might find yourself in a traffic accident in Georgia, which uses this version of modified comparative fault. Georgia’s modified comparative fault law works just about the same as pure comparative fault, up until the point where the victim’s percentage of fault equals 50% or more.
At that point, the party who was 50% or more at fault would receive nothing. For example, say the court assigned a victim 50% of the fault for causing a pedestrian accident. In that case, they’d receive nothing from the other party. However, if they were assigned 40% of the blame, they’d be entitled to 60% of their awarded damages.
Modified Comparative Fault With a 51% Bar To Recovery
Florida adopted a modified comparative fault rule with a 51% bar to recovery on March 24, 2023. Prior to that date, the state implemented a pure comparative negligence rule.
A modified comparative fault state like Florida distributes compensation the same way that Georgia does, with one exception. If an accident victim is 50% at fault, they can recover half of their awarded compensation. However, if their fault exceeds 50% (i.e., 51% or more), they’re barred from a financial recovery from another at-fault party.
Applying Comparative Fault to Settlement Negotiations
So far, this discussion has revolved around what a trial court might do. But most lawsuits settle through negotiation, not trial. So how does comparative fault apply to settlement negotiations?
Parties are likely to settle at somewhere near the amount they think a trial court would award. Any deviation is likely to arise from the opposing lawyer’s relative negotiation skills.
Schedule a Free Initial Consultation With a St. Petersburg Personal Injury Lawyer
In personal injury law, it’s not just whether you win or lose, it’s how much you win. That could add up to a lot of money once you factor in compensation for pain and suffering. A paltry settlement for a large potential personal injury claim is almost as bad as losing. One way that the opposing party might try to “nickel and dime you to death” is by quibbling over the exact percentage of fault.
That is exactly where you are going to need an experienced St. Petersburg personal injury lawyer from Lopez Accident Injury Attorneys on your side. You need a lawyer with experience negotiating so that they will be able to handle the opposing party’s arguments. You also need your lawyer to have a strong track record of winning in court since the threat of litigation is your only source of bargaining power.
Contact us for a free consultation by calling (727) 933-0015.
