1. What is Comparative Negligence?

2. Does New Jersey have a law governing Comparative Negligence?

3. What is permitted under the law?

4. How does an insurer determine the degree of negligence?

5. Can I collect from the other driver’s insurance company for my damages if my fault is greater than the other driver’s?

6. What if I am not happy with the percentage of negligence assigned to me in the settlement of my claim?

7. What happens if my Internal Appeal is denied and your office is unable to resolve the matter?

In automobile insurance, comparative negligence is a term used to indicate the degree of  fault each individual involved in an accident contributes to the cause of the accident. In New Jersey the insurance company investigates the accident and determines how much each individual or vehicle involved contributed to the accident occurring. If you are seeking reimbursement from your own insurance company under your collision coverage, comparative negligence does not apply. However, if you are pursuing a claim against the other driver, his or her insurance company will determine whether and to what extent that driver is at fault for the accident.

Yes. The statutory cite is New Jersey Statutes Annotated (NJSA) 2A:15-5.2.  Most states have similar laws, but there may be differences in how much or how little a person can be at fault and still collect all or a portion of the damages. New Jersey’s law does not provide specific guidelines or dictate procedures for assessing fault and responsibility. The amount of fault is determined on a case by case basis depending on the circumstances surrounding the incident.

The Comparative Negligence Act permits insurance companies to determine responsibility for an accident in proportion to fault of the involved parties. The insurer will review the facts and investigate then assign a percentage of liability to the parties involved in the accident based on contributing factors. Examples of these factors include such things as, failing to observe and avoid the other vehicle, failing to sound the horn, apply brakes or swerve and/or driver inattention. 

Some terms you may come across when discussing negligence issues with the insurance company are: proximate cause of the collision, meaning the primary reason the accident occurred such as a driver not stopping at a stop sign; greater duty of care, such as a person pulling out of a stop sign having the responsibility to be certain no cars are coming before pulling out; last clear chance to avoid the collision, meaning the person who could have done something to avoid the accident occurring and evasive action, meaning the actions a driver can take to avoid the accident.   

After reviewing the facts relating to the accident, the claims adjuster will determine the degree of negligence of their insured as compared to the person making the claim. The degree of negligence is stated in terms of a percentage of fault, such as 80% or 50% at fault for the accident.

Documentation that the insurer may consider includes the police report, driver and witness statements, if available, applicable motor vehicle laws and a scene investigation showing the design and configuration of the roadway where the collision occurred.

No. Under New Jersey’s Comparative Negligence law, an individual’s fault for the accident cannot be more than the individual from whom damages are sought. Therefore, recovery of damages is permitted when each person in a 2 car accident is 50% at fault, but not if you are more at fault than the other person. The amount of damages paid to you is reduced by the percentage you are considered at fault. In other words, if you were considered 50% at fault for the accident, and had $1,000 in damage to your car, you would be paid $500, or 50% by the other person's insurance company.  If in the same accident you were only considered 10% at fault, you would receive $900 from the other person's insurance company. Also, be aware that your percentage of fault will also be considered when reimbursing you for other accident related costs, such as rental car charges. 

Although any concerns regarding the settlement of your claim should first be taken up with the claims adjuster and/or that person's supervisor, all auto insurers must have an Internal Appeal Process in place for the review of disputed claims. Notification of an individual’s right to file an Internal Appeal must be provided by the insurer at some point during the claims process, including information as to where such an appeal may be sent. 

In the event that you continue to be dissatisfied with the claim settlement after filing an Internal Appeal, the company must inform you of your right to contact the Office of the Insurance Ombudsman to request a review of the claim and the appeal determination.

Our office makes every effort to thoroughly review disputed claims and to be sure the insurance company has conducted a complete investigation and reasonable determination when deciding who is at fault for an accident. Unfortunately, sometimes such cases involve a dispute between the drivers involved as to how the accident occurred or differing opinions about who is more at fault or how much fault each driver should be assigned. Issues which are ultimately disputes about facts surrounding the accident or determining whose statement is accurate are issues for the courts to determine if there is an ongoing dispute that we can not resolve. Even if you file an internal appeal and a request for our office to provide assistance, you retain the right to file suit against the other individual in the appropriate court of law to resolve the claim dispute. Your County Court Clerk can provide you with information on the appropriate court given the dollar amount of damages you are seeking, where you live or where the accident happened.