Personal injury
The other driver says I was partly at fault. What happens to my claim?
It shrinks by your share, and it ends only if your share is more than half. The number nobody has decided yet is the one that matters.
Your recovery is reduced by your percentage of the fault, and it is eliminated only if that percentage is more than 50%. At exactly 50% you still recover half. The percentage is not whatever the other driver says, and it is not decided by a police report or a ticket. It is a number an insurer proposes, a jury can set, and evidence moves, and the work in these claims is mostly in that evidence.
01 How the percentage works
What a fault percentage does to your claim in Florida
Fault chargeable to you reduces what you can recover in proportion, and above one threshold it removes it. Under § 768.81(2), contributory fault chargeable to the claimant diminishes the amount awarded, for both economic and noneconomic damages, but does not bar recovery, subject to subsection (6). Subsection (6) is the threshold: any party found to be greater than 50 percent at fault for their own harm may not recover any damages.
The arithmetic is simple, and the cliff is what makes it matter. Suppose a jury finds total damages of $100,000. At 20% fault on you, the award is $80,000. At 50%, it is $50,000. At 51%, it is nothing. One percentage point at the top of the range costs as much as the first fifty put together, which is why a percentage that an adjuster suggests in a phone call is worth contesting.
This is also recent. Before 2023 Florida let a person who was mostly at fault still recover a reduced amount. The Legislature changed that in chapter 2023-15, and the greater-than-50-percent bar is now the rule for negligence actions (ch. 2023-15).
It does not apply the same way to every claim. The statute carves out medical negligence under chapter 766. A car crash is not in that carve-out.
Fifty percent costs you half. Fifty-one costs you everything. That is why the number matters more than the argument about the crash.
02 What decides it
What the other driver’s story, the police report and a ticket do and do not decide
The other driver’s account is a position, not a finding. It is what their insurer will start from. It is evidence only if it is said under oath, and it does not become the percentage unless you accept it.
What you said to the officer for the crash report cannot be used against you at trial. A crash report made by a person involved in a crash, and any statement made by that person to a law enforcement officer for the purpose of completing the report, may not be used as evidence in any trial, civil or criminal (§ 316.066(4)). The same protection does not cover what you tell an adjuster, a recorded statement or a text to the other driver.
A traffic ticket is not admissible at trial. Citations may not be admitted as evidence in any trial, except for narrow uses such as proving falsification or fraud (§ 316.650(9)). That does not make the facts behind a ticket disappear, because the same facts can be proved by witnesses and physical evidence. It does mean the ticket is not the verdict on fault, however much it feels like one.
An insurer’s decision about fault is not a legal finding either. The insurer can reach a conclusion, pay on it, or deny on it. Only an agreement between the parties or a decision at trial sets the percentage that binds anyone.
03 How it gets argued
How a fault percentage is argued, and what moves it
Adjusters build a percentage out of small facts. Speed, lookout, lane position, following distance, whether a turn signal was on, whether a phone was in hand, whether the injured driver braked in time. Each one is a few percentage points, and together they can put a claim on one side of 50 or the other.
What moves a percentage is evidence of what actually happened, and most of it is perishable. The damage to both vehicles and where it is, photographs of the scene before the cars move, video from nearby businesses and traffic cameras, data recorded in the cars, the 911 recording, and the names of people who saw it. Video can be overwritten within days. A car that is repaired or sold takes its own record with it.
Independent witnesses are worth more than the drivers. A person with no stake who saw the light, the lane change or the speed is the one the percentage tends to follow, and they are easiest to find in the first days.
Your own account has to be consistent from the first telling. A version told at the scene, to the insurer and to a doctor that differ in small ways gets used to build a larger percentage. Say what you know, and say you do not know what you do not.
04 What it does not touch
What a share of the fault does not change
PIP does not depend on fault. Your own Personal Injury Protection pays medical expenses and lost income up to its limits for the insured, passengers in the vehicle and others struck by it, without regard to who caused the crash (§ 627.736(1)). A fault argument against you does not reduce it, but the 14-day rule still applies.
If more than one driver was at fault, each pays only their own share. Florida no longer makes each at-fault party responsible for the whole. Judgment is entered against each party on the basis of that party’s percentage (§ 768.81(3)). So when there are two other cars involved, the percentage assigned to each is a question about how much each one owes, and it is worth knowing who they are.
A defendant who points at someone who is not in the case has to prove it. To put fault on a nonparty, such as a driver who left or a contractor who created a hazard, the defendant must plead that fault, identify the nonparty if they are known, and prove it at trial by a preponderance of the evidence (§ 768.81(3)(a)). It is not enough to say it.
Passengers are not assigned the driver’s fault. A passenger who did nothing wrong has no percentage to reduce a claim against the at-fault drivers.
05 What to do now
What to do when someone gives you a percentage
Do not agree to a percentage in a recorded statement. A question like “so you’d say you were partly responsible?” is built to be answered with one sentence that is quoted back. Describe what you did and what you saw, and leave the conclusion about fault out.
Do not accept “it’s about fifty-fifty” as a starting point. It sounds like a compromise. For you it can be the difference between half your claim and none of it.
Collect the perishable evidence first. The scene photographs, the businesses with cameras, the witnesses and the 911 call matter more than the argument, and some of them will be gone in a week.
Do not treat a settlement offer as a measure of fault. An early offer is priced partly on a percentage the insurer has chosen for itself. A low offer can mean a high percentage has been assumed, and the offer does not tell you which (what an early offer is pricing).
06 An example
The same lane change with two different percentages
A driver moves from the middle lane into the right lane with the signal on and is struck from behind by a car coming up fast in the right lane. The other driver’s insurer says the lane change was unsafe and puts fault at 60% on the driver who changed lanes. If that stood, the claim would be worth nothing at all, whatever the injuries.
A small amount of work changes the picture. A camera on the building at the corner shows the signal on for several seconds before the move and the other car coming up at a speed well above the limit. The car’s recorded data supports it, and a driver in the left lane describes the other car passing him on the shoulder side. The question is no longer whether the driver who changed lanes shares some fault. It is how much, and it is now plausibly below half.
If a jury put it at 30% on the driver who moved over, with total damages of $120,000, the award would be $84,000. At 55% it would be nothing. The same crash, the same injuries and the same people, and the entire difference was whether the evidence was collected in time. That is an illustration of how the statute works, not a prediction of what any jury would do.
A constructed example, written to show how the rule works. It is not a case this firm handled and it is not a promised result.
07 What to do now
- Write down exactly what happened, in order, todayWhere you were, what lane, what speed, what you saw and when. Do it before any insurer asks, and keep it factual.
- Photograph the scene, the damage and the road from the angles that show positionsThe final resting positions of the cars, the skid or debris, the signs and signals, and the sight lines. These show who could have seen whom.
- Find the cameras within the first weekBusinesses, traffic cameras, transit buses and doorbell cameras near the crash. Ask in person and in writing, and get a copy. Many systems overwrite quickly.
- Get the names and numbers of people who saw itA witness with no connection to either driver is the most persuasive evidence of how a percentage should be set.
- Do not give a recorded statement on fault until you understand the claimYou are not required to give one to the other driver’s insurer. You may have a duty to cooperate with your own insurer, which is a different thing and has limits.
- Have the percentage looked at before anything is signedA release closes the claim for good. If you are being told you were more than half responsible, that is the point to talk to a lawyer.
08 What an attorney would look into
- Where the damage is on each car and what it says about who was where, and at what speed
- What video exists from nearby businesses, traffic cameras and buses, and how long each system keeps it
- What the cars themselves recorded in the seconds before the crash, and who is holding the car
- Who saw it, and whether anyone with no stake in the outcome has given an account
- Whether any other driver, vehicle or road condition contributed, and whether the other side is trying to put fault on someone who is not in the case
- What was said at the scene, to the officer, to the insurer and in any message, and whether it is consistent
- Whether the injury is serious enough that the difference between a 49% and a 51% share is the difference that matters
09 The sources
- Fla. Stat. § 768.81 Comparative faultContributory fault reduces the award proportionately (subsection 2); each party is liable for its own percentage (subsection 3); more than 50% at fault bars recovery (subsection 6).
- Ch. 2023-15, Laws of Florida The 2023 change to the fault barChanged negligence actions to a greater-than-50-percent bar. Approved March 24, 2023.
- Fla. Stat. § 316.066(4) Crash reportsA crash report made by a person involved, and statements made to an officer for the report, may not be used as evidence in any trial.
- Fla. Stat. § 316.650(9) Traffic citationsCitations are not admissible evidence in any trial, except for narrow uses such as falsification or fraud.
- Fla. Stat. § 627.736 Personal Injury ProtectionBenefits for the insured, passengers and others struck, up to $10,000 in medical and disability benefits, whoever caused the crash.
More questions
If we are both 50% at fault, do I recover anything?
Yes. The bar applies only to a person found greater than 50 percent at fault (§ 768.81(6)). At exactly 50% your award is reduced by half and you recover the other half.
It is also why the argument over a single percentage point matters so much near the middle.
Does getting a ticket mean I am more than 50% at fault?
No. A citation is not admissible evidence at trial (§ 316.650(9)) and does not set the percentage. The facts behind it can still be proved by other evidence, so it is worth understanding what the officer saw, but the ticket is not the verdict.
How you respond to a ticket has its own consequences in traffic court, and that is a separate question from the injury claim.
Can the insurance company decide how much of the fault is mine?
It can decide what it will pay and propose a percentage. It cannot set the percentage that binds you. If you do not accept it, the percentage can be decided by a jury if the case is filed.
That is why an adjuster’s number is a starting position and not a ruling.
Does being partly at fault reduce my PIP or my uninsured motorist coverage?
PIP is paid without regard to fault, so it is not reduced by a fault argument. A claim under uninsured or underinsured motorist coverage is a different claim, and the other driver’s share of fault and your share are both part of what that claim is worth.
The 14-day PIP rule applies in all cases.
I was a passenger. Does anybody’s fault reduce my claim?
A passenger who did nothing wrong has no share of the fault to be reduced. The fault belongs to the drivers whose conduct caused the crash, and a passenger’s claim can run against one or both of them, and under the vehicle’s PIP.
Whose policy responds depends on which vehicle you were in.
What does it cost to have a fault percentage looked at?
The first consultation on an injury matter is free. Representation is on a contingency fee, generally payable only on recovery, with case expenses governed by the written agreement.
If a call is enough to tell you that your share is well under half, Jose A. Dapena will say so.
Were you told you were partly at fault?
Tell Jose A. Dapena what the other driver and the insurer said, and what you remember. He will tell you where the percentage can move and what has to be collected before it is lost. The call is free and there is no obligation.