All personal injury claims are evaluated to determine who contributed to the act that caused the injury in question, including the injured claimant. In fact, this is one of the first components of a claim in many states. In legal terminology, this is called comparative negligence. Each involved party is assigned a percentage after all material case facts are evaluated. This is especially important when claiming injuries due to an automobile accident, but personal assumption of risk may be applied in premises liability claims and other personal injury cases. All states use a particular form of comparative negligence doctrine, with four states and the District of Columbia using a pure contributory negligence standard, which bars any claimant from receiving damage recovery if they contribute to the cause of the injury in any manner. Generally, there are two types of comparative negligence.
Modified Comparative Negligence
Modified comparative negligence is based on the notion that accidents are often caused by several factors, including the actions of the injured party. Individuals who contribute over half of the causation of a personal injury are barred from eligibility to claim any personal injury damages in modified comparative negligence states. Some states set the percentage at 50%, while other states use 51 percent. The one percent difference can be important when two drivers are injured in an accident, and the court rules they equally shared 50% fault.
Pure Comparative Negligence
Some states have opted to use pure comparative negligence and no fault insurance law in an effort to both limit claims and better protect injured motorists. In no fault states, fault is not as much of an issue, because the injured party files first with their own insurance company. The injured claimant’s insurance company is responsible for paying medical bills, lost wages, and any pain and suffering damages that may apply. The value of a claim often rests on the seriousness of the injury in these states, and there are limitations on when a negligent driver can be sued. Some states use pure comparative negligence law, and maintain the principles of fault as a major controlling issue in any injury claim. However, in pure comparative negligence states, all injured drivers are allowed to recover damages discounted by the percentage of fault they are assigned in the accident. Only those who are totally at fault for an injury cannot receive any personal injury damages.
Who Decides Percentages
This determination is by no means a scientific process. Insurance companies often focus on comparative fault in injury claims, because it can potentially reduce their total payout. The negotiation of a settlement will often be based on an agreeable fault percentage by both parties. However, when a case goes to trial, the issue changes. The jury will be the decision-maker concerning fault, as well potential punitive damages, depending on material case factors. This usually happens when a plaintiff’s legal counsel thinks that they can prove gross negligence on the part of the respondent, and could request punitive damages from the jury. These are usually complete fault cases for the defendant, meaning that the fault assignment of the injured party could be zero.
All personal injury claims will include a consideration of fault among all parties. These percentages could all be under the 50% rule, which can also complicate a personal injury claim as well. It may be vital to have an experienced car accident lawyer handling any injury claim, because the defendants will always have an insurance company legal team working to lower the value of a claim. Your attorney is your personal negotiator who can ensure that all rights to recovery are enforced.