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 contributory negligence, any party, even 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 Only a few jurisdictions – Alabama, Maryland, North Carolina, Virginia, and D.C. — still apply the harsh and outdated doctrine of contributory fault.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, and it is the form that Florida applies. 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 against each party based on their percentage of fault. It will compel each party to pay that percentage of the other party’s damages that corresponds to its own 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 and Party B suffered $40,000 in damages. Let’s further suppose that Party A was 15% at fault, while Party B (the intoxicated driver) was 85% at fault.
Party A will bear (15% x $60,000) = $9,000 of their own damages, while Party B will pay the remaining damages ($51,000). Party B must bear (85% x $40,000) = $34,000 of their own damages, while Party A must pay Party B the remaining $6,000. Offsetting these two amounts against each other, Party B must pay Party A ($51,000-$6,000) = $45,000 in damages.
Keep in mind that the party with the lowest percentage of fault doesn’t always come out ahead. For example, a claimant that was 40% at fault might end up losing money to a party that was 60% at fault but with much higher damages.
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 Florida’s pure comparative fault, up until the point where one of the parties’ percentage of fault equals 50% or more.
At that point, the party who was 50% or more at fault would receive nothing. That party can still try to reduce the damages they owe the other party. They would do this by persuading the court to increase the other party’s percentage of fault. All else being equal, it is cheaper to be 50% at fault than 70% at fault, even if you receive nothing from the other party either way.
If the court rules that each party is 50% at fault, neither party pays the other party anything.
Modified Comparative Fault With a 51% Bar To Recovery
A modified comparative fault state like South Carolina distributes compensation the same way that Georgia does, with one exception. If both parties are 50% at fault, each will pay half of the other party’s damages. It is unlikely that either of these parties will break even, however. One of them is almost certain to sustain more damages than the other.
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?
Well, as the old saying goes, “All bargaining takes place in the shadow of the law.” 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 layers’ 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 Law Group 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.