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Is the insurance company claiming comparative negligence after your car accident?  Comparative negligence can be used to reduce your total settlement amount.

The defendant or their insurance company will claim that you were partially at fault for your injuries. Comparative negligence can be tricky to prove after an accident. In today’s blog post, Vermont accident attorney Drew Palcsik covers the topic of comparative negligence.

Learn how insurance companies will try to use comparative fault against you. However, some injuries can exceed the insurance policy limit, even if the insurance company is claiming partial fault.

What is Comparative Negligence?

Comparative negligence is how insurance companies and the courts decide how to allocate responsibility or fault for a personal injury. On one side of a personal injury lawsuit, there is a plaintiff or the injured. On the other side is the defendant, the person or business who caused the injuries.

In other words, the injured person is saying that the defendant is at fault for their injuries.

Now, in some cases, the defendant or his or her insurance company will argue comparative negligence as a defense. This means that they are claiming that you share the responsibility or are to blame for your injuries.

Why Does Comparative Negligence Matter?

The reason this matters, of course, is that it can reduce or eliminate the value given to your injuries by an insurance company or a jury at trial.

Comparative negligence is often used to assign fault after a car accident. If two drivers both break a traffic law and they end up in a collision, then both may be assigned some degree of responsibility or fault.

Many insurance companies will assign fault informally between drivers on a percentage basis. So, for instance, you might hear an insurance adjuster tell you that they’ve accepted 50% liability or 30% fault.

So what they’re saying, in essence, is that whatever the full measure of harm the defendant did to you in the collision, they’re only going to agree to pay you 50% or maybe 30% of the value.

insurance company comparative Negligence

Comparative Negligence Cases Going To Trial

When an insurance company decides on its own to decide that you are at fault for your injuries, in whole or in part, they usually give you a lowball settlement offer, or maybe no offer at all.

This is one reason why people bring their cases to court.

So a jury can hear all of the evidence and decide for themselves who is really at fault for the crash. Now, if your case goes to court, defense lawyers will argue comparative negligence with the hope that they pay as little as possible for your injuries.

How Do Insurance Companies Prove Comparative Negligence?

This will start during the lawsuit’s discovery process when they ask you questions about what you were doing or wearing at the time of your injury.

For instance, a common defense tactic is to argue that you fell on ice because you weren’t wearing proper shoes when you fell.
Or, after a car accident, the defense might argue that you didn’t have your turn signal on at the time of the crash.

Either way, at the end of the case, after hearing all of the evidence, the jury gets to decide if you, the injured person were in any way at fault for the accident. If so, the jury will apportion fault by assigning a percentage of blame to you and the defendant.

Two Types of Comparative Negligence

There are two main types of comparative negligence rules used in the Vermont and New York State courts. These rules depend on the percentage of negligence that’s assigned to the parties after an accident.

Pure Comparative Negligence

First, let’s talk about pure comparative negligence, which is the rule in New York State courts. The pure comparative negligence rule allows the plaintiff to recover money damages, even if they’re assigned 99% of the blame for the accident. In such a case, the plaintiff can still recover as little as 1% of the damages assessed against the defendant.

So, if a jury decides that the total harm done to you was worth $100,000 if you’re assigned 99% of the fault, you’ll collect 1,000 dollars.

Modified Comparative Negligence

A second approach is called modified comparative negligence. And this is the rule in the Vermont State courts.

The modified comparative negligence rule means that injured people cannot recover any money at trial if they are more at fault than the defendant. In other words, in Vermont courts, if you are even slightly more responsible for causing your injury than the defendant, you recover nothing.

How Comparative Negligence Can Impact Your Case

Now, despite your concerns about comparative fault playing a role in your case, it’s not always a problem for your recovery. Over the years, I’ve spoken with many people who are rightly upset that an insurance company has only accepted 50% of the fault for an accident.

But as we’ve seen in our other videos, the fault is only one element of a successful injury claim. And here’s why it matters.

If you have a situation where you’re injured in a crash, and you’ve incurred tens of thousands of dollars in medical bills and lost wages. Still, the other driver only has $25,000 of insurance; there’s a good chance you’ll collect all that insurance money, even if the other driver accepts only half of the fault. This is because the total value of your claim, including medical expenses, lost wages, pain and suffering, and other damages, will far exceed the available insurance money.

So, even if that’s reduced by 50% or so, it’s still going to max out the available coverage of a relatively small insurance policy.


Thank you for reading today’s blog post; we hope you take away three points.

Number one. Comparative negligence is used to assign blame and apportion fault between parties after an accident.

Number two. New York follows the pure comparative fault rule, meaning that if you prove that the defendant was responsible for your injuries, you can collect something based on the percentage of fault assigned to either party. On the other hand, Vermont follows the modified comparative fault rule, meaning that the defendant must be more at fault than you are to collect anything.

And finally, number three. Even if the insurance company accepts something less than full responsibility for your injuries, you may still be able to collect all of the available insurance coverage. This often depends on the nature and extent of your injuries and how much insurance is available.

Contact Us Today

If you want to work with experienced Vermont personal injury lawyer Drew Palcsik about your injury claim, feel free to call our office or send us a message using our contact form. We serve clients at Burlington, Middlebury, Vermont, and Plattsburgh, New York offices.