One of the first steps in resolving car accidents is determining who is at fault. A critical element in both legal and insurance aspects, fault often plays the biggest role in determining the outcome of a claim. Unfortunately, liability isn’t always clear and absolute. It’s not uncommon for two parties to share the fault and thus be held equally responsible.
Contributory and comparative negligence
In the past, if a person is found even slightly responsible for an accident, he or she isn’t entitled to any claims. This is known as “contributory negligence.” However, most states now use “comparative negligence,” which allows car accident victims to recover damages even if they are partially liable. Comparative negligence is classified into three types: pure, proportional at 51%, and proportional at 50%.
Pure comparative fault
Under pure comparative fault, an injured person who is found partially at fault is entitled to reduced damages. The reduction is proportional to the percentage of the person’s fault; that is, if one is found 75% at fault for the accident and claims $10,000 in damages, he or she will receive $2,500—75% less than the total.
Proportional comparative fault
This rule states that a car accident victim can file a liability claim only if his share of the fault meets a certain percentage. Some states have set the bar at 50%, while others have put it at 51%. This means that if a person is more than 50% or 51% at fault in the accident (depending on the state), he or she cannot recover damages for resulting injuries. In states where the 50% rule is in use, if both parties are 50% at fault, neither one is entitled to damages.
Determining percentage of fault
The degree of fault is usually determined by a claims adjuster from the insurance company concerned. The adjuster does not follow a mathematical formula; it is mostly a matter of negotiation between the victims and the adjuster. If the parties cannot reach an agreement, a personal injury attorney may be called in to negotiate for a lower share of the fault for his or her client. If this fails to resolve the problem, the case is brought into a court of law.
This article is not intended as legal advice.
More information available at The Barber Law Firm. Serving clients throughout Dallas, TX.