What is “Comparative Fault”?

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

Comparative fault is an important concept to understand if ever you are involved in an accident with damages. This concept can also be known as comparative negligence, and California is one of the states that recognizes it while determining who is at fault, and ultimately liable, for an accident/incident.

This is a principle of tort law that is applicable in casualty insurance in states such as Arkansas, Georgia, Colorado, South Carolina and California of course. Comparative negligence states that when an accident occurs, the fault and/or negligence of each party involved is based upon their respective contributions to the accident. This allows insurers to assign blame and pay insurance claims accordingly.

In other words, because California recognizes this legal argument, someone in a car accident may still recover monetary compensation even if they are found to be partially at fault by a court for causing the accident that resulted in their injuries. Or similarly, someone who was injured/faced damages in the accident may be made partially financially responsible even if the other side is primarily at fault and is insured.

Comparative negligence is most often used to assign blame in auto collisions specifically. If both/all drivers in the accident break the same traffic law(s) in the incident, then both may be denied their claims. Many insurers assign blame between the involved drivers on a percentage basis, such as 80/20 or 70/30.

Claims become more complicated if there is any question of comparative/shared fault for the accident. The insurance adjuster will argue that you share some of the blame, and with it a portion of the financial burden, for the accident and will likely try to get you to admit some fault.

Be wary of leading questions/statements from these insurance adjusters, even seemingly innocuous ones. Don’t be manipulated into making admissions that they will use against you. Expect tricky questions from the adjuster, such as, “Could you have been distracted by your baby in the back seat?” or “It’s harder to see at night at our age, isn’t it?”. Even if asking you something like “How are you today?” is an opportunity for them to use “I'm fine” as evidence against your personal damages. Though that is less a question of comparative negligence..

The adjuster is well aware that in states with comparative negligence laws, if you’re partially to blame for the accident, that is an opportunity for the insurance companies to twist the situation in a way to avoid having to pay up. Your settlement could be drastically reduced or you could even end up being awarded nothing at all.

For all these reasons, it is critical that you understand this concept. You can now go forth in knowledge of this and be very careful and strategic in your dealings after an accident.