By Francis M. Smith
When a personal injury case is taken to trial, an insurance company often finds itself facing the prospect of paying the injured person a substantial sum of money in damages for medical expenses, lost wages, pain and suffering, and other costs. Though the damages sought by injured plaintiffs are generally quite reasonable given the expenses and suffering they have endured, insurance companies are highly motivated to reduce the amount of money they are forced to pay out. They will use any legal defenses available to them to bring down the total damages for which they are liable. Their lawyers might try to challenge the facts of your injuries and the costs arising from them, claiming you aren't as badly hurt as you say – or they might try to prove that you were partly at fault for the accident in which you were injured, and that therefore the insurance company shouldn't be responsible for paying the entirety of the resulting damages. This latter strategy is a comparative negligence defense.
Comparative negligence is a partial defense (it doesn't completely deny liability for the accident and the resulting injuries) that can be used by insurance companies and other parties being sued in a personal injury case. As part of the defense of a case, the insurance company's attorney using a comparative negligence defense will assert that the injured person's actions were also negligent in some way, and that they bear part of the fault (or responsibility) for the incident which caused the injuries. If the jury agrees with the insurance company's description of events, they will assign percentages of fault to each party involved in the accident. The sum of the injury damages that the injured person will be able to collect from the insurance company will be reduced by the percentage of fault they were found to have in the accident – for instance, if a person injured in a auto collision is found to be 20 percent responsible for the accident after the insurance company uses a comparative negligence defense, the judge presiding at the trial will "mold" the verdict. If the jury has said that reasonable compensation for the injuries sustained would be $100,000, the judge would reduce the verdict by 20%, or $20,000, and enter a verdict of $80,000. This recognizes that a claimant should not be compensated for his share of the responsibility for an injury-causing event.
Most states, including New Jersey, now use a system that acknowledges comparative negligence as a legal defense. This is a change from an earlier form of the law that was much harsher on injured plaintiffs seeking injury compensation. The earlier form, still used in a handful of states, is called contributory negligence. Under this legal standard, if the injured person is determined to have any fault at all for the accident that resulted in their injuries, even if it's a much lower percentage of fault than that of the person they're suing for damages, they cannot recover any money for their injuries. The standard used in New Jersey is much less harsh on the injured person, making it possible for them to win a damage award for their injuries even if a jury believes they bear some small percentage of responsibility for the accident. Though insurance companies often use comparative negligence defenses to reduce the amount they have to pay, it's much harder for them to get themselves off the hook for injury damages completely this way.
There are circumstances under which it may be possible for an injured person to be denied all damages on the basis of a comparative negligence defense, however. If the insurance company's lawyer can successfully argue that you bear more responsibility for the accident than their client, you may not be awarded damages. New Jersey law requires that an injured person's fault for the accident and resulting injuries not be greater than 50 percent of the total fault – in other words, that you are not more responsible for the accident than the other parties involved. In the case involving multiple defendants, your percentage of fault will be compared to the fault of all the defendants combined, not just one. This way, even if a jury does determine that you bear some of the blame for your accident, it's less likely that you will be completely denied compensation under the laws governing comparative negligence.
It's important to make sure that your attorney knows all the details about the circumstances of your accident as early in your case as possible, so he will be able to prepare for the possibility that the insurance company will use a comparative negligence defense and be ready to counter it.
If you or a loved one have been injured in a serious accident, please contact me or call me at 908-233-5800 for a free consultation.