Comparative negligence laws divide liability for a car accident according to the percentage each negligent driver is found to be at fault.
In some accidents there is no clear fault, or more than one driver is to blame.
If one driver fails to yield the right of way but the other is speeding, for example, comparative negligence laws allow insurance adjusters to apportion blame and resulting liability insurance claims. If one driver is 80 percent to blame, the other driver can collect only 80 percent of the damages incurred. The "last clear chance" rule is often the center of such claims, when one driver is ruled to have had a clear chance of avoiding an accident.
States with pure comparative negligence laws let all drivers recover some payment for their damages, even if they are mostly to blame. A driver 70 percent at fault in an accident could make a claims for damages against the other driver's liability coverage but expect to receive only 30 percent of the claim amount.
But in the majority of states that have modified comparative negligence laws, a driver's right to recover damages is limited if his or her fault exceeds a set amount. Some states set that threshold at 51 percent; that is, if the driver is 51 percent or more at fault, he or she cannot recover damages. At less than that threshold, the driver's damages would be reduced by his or her degree of fault.
Other states have a 50 percent rule: No one with half or more of the fault is entitled to recover damages.
Contributory negligence is used in Alabama, Maryland, North Carolina, Virginia and the District of Columbia and prohibits a driver from recovering damages if found even a small amount at fault for the accident.
Who decides degree of negligence? Insurance company adjusters do. You can negotiate with them, but if you disagree with the final outcome you may have to go to court.
Your state insurance regulator has details on the negligence laws where you live.
If you place a claim through your own collision coverage, comparative and contributory negligence don’t apply. Collision benefits pay out in full no matter how much you are at fault for the accident. Comparative and contributory negligence applies only if you are pursuing a claim through the coverages (usually bodily injury liability and/or property damage liability) of the other driver.