Comparative fault and contributory negligence are two seemingly simple terms that can cause severe headaches in our daily lives if we don’t understand these terms. Each concept is applicable to an event where two or more persons may be responsible for the damages. Comparative fault and contributory negligence only apply to negligence claims. Though these doctrines can be complex in practice, below are a few ideas to consider when pursuing your subrogation claim.
Generally speaking, we understand that more than one person can be at fault for an accident. As a subrogation examiner, first, does your insured have any fault for the accident? Second, what percentage of fault is your insured? The first question is easier to answer than the second because the second question is usually only decided by a judge or jury.
Recovery model under contributory negligence
The pure contributory negligence rule is if your insured is even 1% at fault, then you cannot recover any damages. The states of Alabama, North Carolina, Virginia and the District of Columbia recognize a pure contributory negligence rule.
Recovery model under comparative negligence
Comparative negligence can be broken down between modified comparative negligence and pure comparative negligence.
Pure comparative negligence is if your insured is 99% at fault for the accident, you can still recover 1% of the claim. Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington follow this rule. However, keep in mind that 1% recovery of a $10,000 claim is only $100. Plus, the cost to pursue such a claim must be considered. The subrogation examiner should recognize if she continues to pursue the claim where the insured is 90% at fault, it would seem likely the other person only 10% at fault would pursue a claim against your insured.
Under modified comparative fault there are two rules which states follow
Under modified comparative fault, there are two rules which states follow. Under modified comparative fault, some states follow the 50% rule and some states follow the 51% rule. The 50% rule is you cannot recover if your insured is 50% or more at fault. However, if your insured is only 49% at fault, then you can recover 51% of your damages.
The 51% rule is you can recover damages if your insured is 50% or less at fault. So even if your insured is 50% at fault, you can still recover 50% of the damages. However, if your insured is 51% at fault then you cannot recover any damages. Ohio, Indiana, and Illinois are three states that follow this rule and are three states which Keis George provides attorney services.
If you have any questions about comparative fault and contributory negligence, please contact one of our subrogation attorneys.