In Florida, as a general rule, you can file a lawsuit if you get injured in an accident that is someone else’s fault. This fault must rise to “negligence” (unless strict liability applies). Still, negligence can take many forms, and mistakes resulting in serious accidents will increase the level of negligence in most cases.
But what if the accident was partially your fault?
Whether you were injured in a vehicle collision or slipped and fell, you might think that there was something you could (and should) have done to protect yourself. This is a natural reaction, and many accident victims question whether they are partially responsible for their injuries. But, while this is a reasonable question, you should never assume you were partially at fault—as doing so could prevent you from collecting the financial compensation you deserve.
Understanding Florida’s New “Modified Comparative Fault” Law
We need to look at Florida’s new “modified comparative fault” law to understand the implications of being partially at fault in an accident. Previously, Florida followed the rule of “pure comparative fault,” which allows accident victims to recover a portion of their losses regardless of their percentage of fault. However, this is no longer the case under Florida’s new “modified comparative fault” law. As amended in March of 2023, the law now states:
“(2) EFFECT OF CONTRIBUTORY FAULT.-In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery, subject to subsection (6). . . .
“(6) GREATER PERCENTAGE OF FAULT.-In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence . . . .”
What does this mean? In short, it means that if you are more than 50 percent at fault in an accident, you are not entitled to any financial compensation for your injuries—no matter how severe they may be. If you are less than 51 percent at fault, you are entitled to a monetary reward, but your recovery will be reduced based on your percentage of fault. For example, if you are deemed 10% at fault, and your losses total $100,000, you would be entitled to recover 90%, or $90,000.
As you can see from this example, while Florida’s new “modified comparative fault” law will negatively impact some accident victims, you still have the same legal rights as long as you are not primarily responsible for your injuries. Of course, as a practical matter, if it appears that you may have played a significant role in causing your accident, the insurance companies will try to use Florida’s new 50% threshold against you. If your losses total $100,000 and you were 50% at fault, you are entitled to $50,000. However, you are entitled to nothing if you were 51% at fault. Under the new law, 1% can make a huge difference; insurance companies will leverage this whenever possible.
Why You Should Never Assume You Were Partially At Fault in a Serious Accident
Given the consequences of being partially at fault in an accident under Florida law, you should never assume that you are partially to blame for your injuries. No matter what happens, you must make informed decisions based on the facts and avoid saying or doing anything that could jeopardize your financial recovery.
Determining what factor (or factors) caused an accident requires a thorough—and unbiased—investigation. When you hire a lawyer to represent you, your lawyer will evaluate all potential factors in your accident to determine both (i) what company (or companies) are liable for your injuries and (ii) whether Florida’s “modified comparative fault” law is at play. It would help if you did not rely on the insurance companies’ investigation, as they will evaluate and relay the facts with their best interests in mind.
Consider a common scenario: You were injured in an auto accident and driving over the speed limit during the crash. Since you were speeding, you might assume that you are partially to blame.
But this isn’t necessarily the case. Even if you were driving more slowly, you may have had no way to avoid the collision. Your speed could have even saved you from a more direct (and more serious) collision. Maybe your brakes or anti-lock braking system (ABS) failed. Maybe your tires didn’t hold up to the heat and pressure of an emergency stop like they were supposed to. There are numerous possibilities, and a thorough investigation could clearly show that you are entitled to full compensation for your accident-related losses.
Determining Percentage of Fault in a Florida Personal Injury Claim
In cases involving shared liability, who determines your percentage of fault? The short answer is, “It depends.”
Most personal injury claims—including auto accidents, construction accidents, premises liability, and maritime negligence claims (among others)—are resolved through insurance settlement negotiations. The insurance companies will determine liability, and if you hire a lawyer to represent you, your lawyer will independently assess each party’s percentage of fault. Your lawyer and the insurance company’s lawyers will then compare notes to see if they can reach an agreement (subject to your approval). In complex cases, one or both sides may also engage an accident reconstructionist or other experts to provide an outside perspective.
If you and the insurance companies agree on a percentage of fault (whether 0% or 50%), then this number will be used when calculating the amount you are entitled to recover. However, your lawyer must take your claim to court if you and the insurance companies disagree. Personal injury claims still can (and do) settle at this stage, but if necessary, your lawyer can present the evidence to a judge or jury who will make the ultimate decision on liability (subject to appeal).
Protecting Your Legal Rights When You Have Concerns About Partial Fault
Regardless of the circumstances involved, being proactive about protecting your legal rights after a serious accident is essential. With this in mind, here are some steps you should try to take when you are dealing with accident-related injuries and have concerns about partial fault:
- Get Treatment for Your Injuries – In all cases, your priority should be getting the necessary treatment. Not only is this important for your physical recovery, but it is also essential for your financial recovery. Seeing a doctor promptly will help document the cause of your injuries, and it will prevent the insurance companies from saying that you could (and should) have done more to mitigate your medical expenses.
- Take Detailed Notes – It is always important to take detailed notes after a severe accident, but this is especially true when you have concerns about partial fault. You do not want anyone else’s version of the events to sway your recollection. Write down everything you can remember about what happened. No detail is too small, and the more information you can share with your personal injury lawyer, the better.
- Avoid Giving a Recorded Statement – While you should take notes that you keep to yourself (until you share them with your lawyer), you should avoid giving a recorded statement. It would be best if you did not discuss the accident with anyone else at this time. If you provide a recorded message to the insurance companies, they can use your words against you, and they will try various tactics to get you to admit to being partially at fault.
- Avoid Posting on Social Media – You should avoid posting on social media. While it can be tempting to tell your friends and followers what happened, you must keep the details and your opinions to yourself. Insurance companies may monitor your social media accounts, and if you post anything they can use against you, they will not hesitate to do so.
- Talk to a Personal Injury Lawyer – Given the challenges involved with protecting your legal rights, calculating just compensation, and securing the financial recovery you deserve, it is strongly in your best interests to hire an experienced personal injury lawyer. You can get started with a free, no-obligation consultation, and you should not have to pay anything unless you receive a settlement or verdict.
What if an Insurance Company Has Already Accused Me of Being Partially At Fault?
If you have been trying to handle your situation alone, you may find yourself facing accusations that your injuries are partially your fault. This is a standard insurance defense tactic, especially with Florida’s new “modified comparative fault” law.
In this situation, you should contact a personal injury lawyer promptly. You should not accept the insurance company’s accusations. When you hire a lawyer, your lawyer can investigate and help you make informed decisions based on the facts. If you genuinely were partially at fault (which may or may not be the case), your lawyer can make sure an accurate percentage of liability is assigned to all parties involved. If you were not partially at fault, your lawyer could use the evidence to prove it and seek full compensation for your accident-related losses. As we recently discussed, this includes not only compensation for your medical bills and other out-of-pocket costs but also your lost earnings and non-financial losses.
How Do I Prove that I Wasn’t Partially At Fault?
Proving fault (or lack thereof) after a serious accident can require various forms of evidence. Depending on the circumstances, this may include not only evidence from the accident scene but also phone records, maintenance records, surveillance camera footage, vehicle data, and various other forms of documentation. As noted above, engaging an accident reconstructionist and other experts may be necessary. Given the multiple steps involved (not to mention the steps involved in preserving evidence so it remains admissible in court), you must hire a lawyer to represent you as soon as possible.
Speak with a Florida Personal Injury Lawyer at Silva & Silva
If you need to know more about your legal rights after an accident in Florida that may have been partially your fault, we encourage you to contact us promptly. To confidently speak with an experienced personal injury lawyer at Silva & Silva, call 305-445-0011 or request a free consultation online today.