Car Accident – Determining Who Is 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 15, 2021

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Fault is one of the most critical elements in any car accident claim. The person at fault is the person whose negligence caused the accident, and this is the person who typically must pay for the damage caused by his or her negligence.

If fault is not clear in your case or if there is shared fault, then fault is apportioned between the persons, and determined by the specifics of the laws on comparative or contributory negligence in your state. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.

What Is Comparative or Contributory Negligence?

Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal terms as pure contributory negligence.

For example, say Luther and Martin were involved in an accident. Luther hit Martin’s car while making a left turn onto a 2-lane street at night. Luther didn’t see Martin’s car because even though it was night time (and a dark one at that), Martin was not driving with his headlights on. Under a pure contributory negligence theory, Martin could not recover damages for his injuries because he was partially at fault for the accident. Sound pretty harsh? Actually, some states still follow this rule (Alabama, District of Columbia, Maryland, North Carolina and Virginia).

Most states now use some proportional form of comparative negligence that allows an injured party to recover some damages for his or her injuries, even if he or she was partially at fault. There are currently three variations: Pure comparative fault; proportional comparative fault at 51%; proportional comparative fault at 50%.

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Pure Comparative Fault

In states that have adopted pure comparative fault as a measure of damages, if an injured person is partially at fault for causing his own injuries, his damages are reduced by the percentage of his fault. For example, say Michelle was injured in a car accident for which she was 80% at fault. Damages for her injury amount to $10,000. Michelle will be entitled to recover $2,000 for her injuries, that is, $10,000 less 80% or $8,000 for her percentage of fault.

States: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington.

Proportional Comparative Fault at 51 Percent

The states that have adopted proportional comparative fault bar recovery if you are more than 51% at fault for the accident. In other words, you cannot file a liability claim and lawsuit against the other driver’s negligence if you were more than 51% at fault.

For example, Dennis hit Teri’s car while driving in excess of 25 miles per hour over the speed limit while Teri was attempting to cross the road. Even though Teri was partially at fault for not waiting until the road was completely clear before crossing, the insurance company allocated fault to Dennis at 60% due to his excessive speed. Even though Dennis suffered a broken arm from the accident, he is not entitled to recover for his injury due to the fact that he was more than 51% at fault for the accident.

States: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming.

Proportional Comparative Fault at 50 Percent

In states that have adopted the 50% bar standard in resolving auto accident claims, an injured person that is less than 50% at fault for the accident is entitled to compensation. If the injured party is 50% or more at fault, he or she is not entitled to recovery for the injury. For example, Richard and Susan accidentally hit each others’ cars while backing out of their parking spaces at exactly the same time. Both were not looking carefully enough when they backed up, and so both were deemed equally at fault for the accident. Neither one will be entitled to damages since both were 50% at fault for the accident.

States: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia.

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How Is Percentage of Fault Determined?

After an accident, it is the job of the insurance company claims adjuster to assign the relative degrees of fault based on the circumstances surrounding the accident. There is no secret formula for determining percentages of fault in accident injuries. You and the claims adjuster will negotiate and come to some agreement as to what extent, if any, you are at fault.

An experienced personal injury attorney can help you determine fault percentages. He or she will know how to assess the accident and advocate for the lowest percentage of fault on your behalf. If you and the insurance adjuster reach an impasse, a court of law is ultimately your next step to resolve the issue of fault.

Fault and Car Insurance

Insurance companies often offer extra coverage/protection (for extra money) to help pay for property damage and/or personal injury and medical expenses regardless of fault. So if you are injured in an accident that was mostly your fault and you are not entitled by law to compensation from the other person’s insurance, but you have extra coverage under your own policy, your insurance company will pay for your injuries.

This extra coverage is called PIP (personal injury protection) or no-fault coverage. Here’s a list of no-fault car insurance states. Under this scenario, you would file a liability claim with your own insurance carrier for medical bills and lost income, up to a specified maximum, without any discussion or disagreement about the circumstances of the accident and who was at fault. Whether you can file for further expenses against the other person who was at fault in the accident depends on your state’s laws.

In many states, uninsured/underinsured coverage is required. This provides coverage for damages resulting from an accident with someone who either has no insurance or does not have enough insurance to cover your expenses. It also protects you if the other person flees the scene after the accident or is a driver of a stolen car.

Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your accident injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties. Was the other party completely at fault? Mostly at fault? Or only a little at fault? If you are in a comparative fault state, an adjuster will reduce your recovery amount by your percentage of comparative fault. If you were only 10% at fault, your damages total will be reduced by 10%. Your recovery will not be reduced by any amount if the accident was clearly someone else’s fault.

For more information about the role of negligence in determining fault in an accident and the impact of non-driver related circumstances on liability, see:

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