Modified Comparative Fault in New Jersey

Interview with New Jersey Personal Injury Lawyer – Edward Capozzi

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.

New Jersey Modified Comparative Negligence Standard

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: 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?

Ed Capozzi: 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.

Host: It's almost as if we're saying the jury can't handle knowing the reality.

Ed Capozzi: 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.

Host: So, they may be worried about protecting the defendant but, really, it may be the defendant's insurance company or maybe even your own.

Ed Capozzi: 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.

Host: Maybe you could share a couple of examples that you've seen. What would a case where 50% liability, what would that look like?

Ed Capozzi: 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.

New Jersey No-Fault Insurance

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.

Host: Before we let you go, Ed, any other tips or advice you'd give to accident victims to better understand this?

Ed Capozzi: 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.

Host: Edward Capozzi is an attorney based in New Jersey. Ed, thanks for taking the time today.

Ed Capozzi: Happy to be here. Thank you very much.