Modified Comparative Fault – Who is liable in a car accident? (New Jersey) - YouTube

Hello, and welcome to TalksOnLaw. I’m  Joel Cohen. Today, we're talking about  

car accident liability in New Jersey and what  exactly is modified comparative negligence.  

We're joined remotely by an attorney based in  New Jersey. Ed Capozzi, welcome to TalksOnLaw.  

Nice to be here. So, in New Jersey, what is the  standard, and then maybe we can compare it to  

other states? In New Jersey, it's called modified  pure comparative negligence. So, in other words,  

what that means is — and I could start probably  with pure comparative which we don't have in New  

Jersey by the way, there are some states that have  it, I believe New York and California have it,  

where you can be found negligent as  well — so, if you're suing somebody  

and you're found to be more negligent than  the person you're suing, in other words,  

if you're even found 99% negligent, you can still  collect 1% of the award. So, if you have a verdict  

that it’s one hundred dollars and you're found 99%  negligent, you would collect $1. In New Jersey,  

it's called modified pure comparative negligence,  where you could be found up to 50% negligent and  

then your award will be reduced by your amount of  negligence. So again, if I'm found 40% negligent  

and the defendant is found 60% negligent, then  when the award is $100, you would get $60.  

There's also something called pure contributory  negligence which is rare, it's not many  

states — Virginia has it, I know that because  I have a trial coming up there in a couple of  

weeks — whereas if you're found 1% negligent,  you lose. You're not able to recover, so that's  

a pretty pretty high standard. Oh, interesting.  So, if you did anything remotely wrong, you may  

not be able to recover at all? Yes. Unless you're  stopped at a red light and you're rear-ended  

(where typically you're found to be 0% negligent  because you've done nothing wrong), in any other  

circumstance, even in that one, they could  say you started to move and then you stopped,  

you could be found 1% negligent. How it works  is they'll say, “Was the defendant negligent?”  

The jury could answer yes. “Was the plaintiff  negligent?” If they say yes, case over. Why  

don't we go back to the New Jersey standard.  That's called modified comparative fault?  

Yes. And, as you mentioned, there's a threshold,  so you can't be more than 50 percent culpable?  

Yeah, so in other words you cannot be more  negligent than the person you're suing.  

So, there are times when a case will come back  50/50. You can then, if you're given a $100 award,  

you can collect $50, but if you're found 50.1%  or 50.5% or 51% negligent — I've seen it happen —  

you collect nothing. It's never happened to  me, but I've seen it happen to other lawyers.  

So, if in this 50/50 example, you hit me with  your car but maybe I was texting while driving.  

The determiners of fact say that it's 50% my  fault, 50% your fault, who's paying the $50 that  

you described? The defense insurance company,  the defendant who you're suing, their insurance  

company, like I said earlier, steps in. And the  jury never knows it. You're not allowed to mention  

the word insurance, you're not allowed to refer to  the defendant as being insured, so they're hidden  

and protected by the defendant. And what happens  is sometimes the jury feels bad for the defendant.  

Sometimes it's a young person who doesn't have a  lot of assets, might work a regular menial job,  

so they're not going to probably bang them out  for a million dollars thinking, “How are they  

ever going to pay it?” Meanwhile, there's an  insurance company that's paying it. It's almost  

as if we're saying the jury can't handle knowing  the reality. Exactly, and even when — and this is  

even more disturbing — when you have an  underinsured motorist claim, which means that,  

say, you have a $100,000 in coverage and  the defendant that hits you has $15,000,  

you're allowed to collect that $85,000  difference from your own insurance company,  

and they typically treat you worse than they would  a third party or another party. So, you typically  

have to try cases a lot of times against your own  insurance company, and they step into the shoes of  

the actual defendant, so that defendant's  name is still on the verdict sheet. They  

might not appear in court because they're not the  client or the customer of the insurance company,  

but you have to fight your own insurance company  and the jury never knows that you're fighting your  

own insurance company. So, they may be worried  about protecting the defendant but, really, it  

may be the defendant's insurance company or maybe  even your own. Yep, and it's very common, because  

in New Jersey — you know New Jersey, it's  a very, very dense state, the most densely  

populated state in the country — we have  the highest insurance rates in the country,  

and we have one of the lowest levels of minimum  policies. Our minimum policy is really zero  

because they write what's called a basic policy,  which we don't even need liability coverage for.  

Our typical minimum policy is $15,000 per person,  $30,000 per accident and it hasn't been changed  

since 1974, which is pretty amazing. New York is  $25,000 limit, I think Mississippi has $30,000,  

and we have $15,000. Maybe you could share  a couple of examples that you've seen.  

What would a case where 50% liability, what would  that look like? Maybe not 50%, but close to it.  

I've seen, for example, you're driving down  the road and you're gonna make a left turn,  

and you think you can make a left turn, and  there's a car coming towards you and you  

attempt that left turn. You get t-boned by that  car coming straight. Naturally, you're supposed  

to yield to that car that's coming straight, and  you probably shouldn't have made that left turn,  

because if you didn't make the left turn — and I  always use this example — but for you not yielding  

to the oncoming traffic, that accident occurred.  However, the person that's driving straight  

should have seen that that car was in a left  turn lane. It was possible that that car could  

have turned left. So, because the law says you  have to make observations all the time, you could  

have driven defensively for example, and started  to slow down just in case that car made a left.  

But if you think about it, if we did that, I don't  think we'd get very far, but every time you, we  

came to an intersection worrying about somebody's  going to go through a red light or a stop sign,  

things like that. But I've seen juries put  40% liability on the car coming straight,  

I’ve seen them put 50%, because like I said,  sometimes that car is actually speeding. And this  

all fits within the New Jersey no-fault insurance  regime. What is the no-fault insurance structure  

in New Jersey? Okay, New Jersey is a no-fault  state and, really, what that means is you know  

when you buy auto insurance, not only do you buy  liability insurance (the insurance that protects  

other people from when you're negligent), but it  also includes health insurance, it's called PIP  

insurance. So, whenever you get in an accident,  regardless if you have health insurance or not,  

the doctors, and even the hospital, they know  you're coming to the hospital from an auto  

accident, they'll ask you for your auto policy.  They don't ask you for your health insurance. So  

what no-fault means is no matter who’s at fault,  your own auto insurance pays the medical bills.  

And when that limit is exhausted, either then you  have to treat on what's called a lien or you can  

convert it to your secondary insurance,  which is your private health insurance.  

So that's all it means is regardless of who's  at fault, your own auto carrier pays your bills  

for medical treatment. Before we let you go,  Ed, any other tips or advice you'd give to  

accident victims to better understand this? Yeah,  one thing I can say is especially in this era, or  

this day and age, insurance companies are writing  the smallest possible policies they can write,  

because even when I was a young driver,  you don't really care about liability,  

you just want to be able to drive a car. So,  you buy the cheapest insurance you can buy.  

So, because there's so many small  policies being written right now,  

you need to buy enough underinsured motorist  coverage to protect yourself because when you  

buy bodily injury coverage, a lot of insurance  companies do this too, they'll sell you a $250,000  

policy in case you injure somebody else, but  then they write a UIM policy, or an underinsured  

motorist policy, for the same driver for $100,000.  So, in other words, if you hurt somebody else,  

they get $250,000 from you, but if you get hurt  by somebody who has very little insurance or no  

insurance, the most you get is $100,000, so those  limits should match. Edward Capozzi is an attorney  

based in New Jersey. Ed, thanks for taking the  time today. Happy to be here. Thank you very much.