In New Jersey, how is fault determined after a car accident? Can a driver recover if she is also partly to blame for the accident? New Jersey follows what’s called a “modified comparative negligence” regime. New Jersey personal injury lawyer Edward Capozzi explains what modified comparative negligence is and how it determines the amount of recovery for each party in a car accident. He also discusses New Jersey’s no-fault insurance system and minimum coverage requirements.

Edward Capozzi is a personal injury lawyer in New Jersey and a member of the law firm Brach Eichler LLC. Edward concentrates his practice in auto, trucking, NJ Transit, products liability, and other catastrophic personal injury cases.

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TRANSCRIPT

Joel Cohen (Host): 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.

Ed Capozzi: Nice to be here.

Host: So, in New Jersey, what is the standard, and then maybe we can compare it to other states?

Ed Capozzi: 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.

Host: Oh, interesting. So, if you did anything remotely wrong, you may not be able to recover at all?

Ed Capozzi: 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.

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

Ed Capozzi: Yes.

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

Ed Capozzi: 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.

Host: And this all fits within the New Jersey no-fault insurance regime. What is the no-fault insurance structure in New Jersey?

Ed Capozzi: 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.

[Transcript redacted due to space constraints.]

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