My State Has A Comparative Negligence Law. How Does That Work? Who Decides How Much I Was At Fault?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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The fault for an accident is not always placed squarely on one participant; one party is not necessarily held totally at fault and the other totally blameless. After determining the percentage of fault by each party, the compensation by the insurance company is adjusted accordingly.

Allocation of fault is made by negotiation between the insurance company and the claimant. There are state-by-state variations in how comparative negligence works, but the two main versions are:

1. Pure Comparative Negligence (or the 100% Type), where the claimant can collect for damages up to the amount of their damages minus the percentage of the damage that was their fault (for example, if the damage was $10,000 and the claimant was 20% at fault they would get $10,000-$2,000 or $8,000)

2. The more widely used Modified Comparative Negligence (or the 50% Type or 49% Type), which allows the claimant to collect from the other party’s insurance carrier only if he or she is determined to be at fault less than a certain percentage (usually 50% or 49%).

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