Comparative Fault Compromises in North Carolina

 House Bill 813, like most pieces of legislation, has both proponents and opponents. Mainly, the proponents of the bill are those who are in the legal profession, due to the fact that comparative fault is a system more in line with justice since it allocates fault among those who are responsible. The opponents, being mainly the insurance companies take their position because, according to them, switching to a comparative negligence state would mean more pay-outs to claimants. Because there are two groups with opposite, but legitimate, goals, compromises have to be made to satisfy both groups.

One compromise that the state legislature has made to insurance company lobbying is adopting a modified version of comparative fault where a plaintiff is barred from recovery if her fault exceeds a certain threshold. The North Carolina House of Representatives decided to adopt an amendment to House Bill 813 which states that where a party contributes equal to or greater than the combined responsibility of all other parties, she will be barred from recovery. https://askcompetentlawyer.com/ The other option would have been to allow recovery only when a party's fault did not exceed the combined responsibility of all other parties. Now, with the amendment, a plaintiff who is 50% at fault in an accident can recover nothing, whereas, without the amendment, a plaintiff could recover even if he was 50% at fault.

Another compromise deals with the area of damage allocation. Right now, North Carolina has joint and several liability. This means that if there is more than one defendant in a case, the money awarded to the plaintiff can be recovered from any single defendant. Basically, if one defendant can't pay, the other defendant(s) is liable for the insolvent's share. If comparative fault is implemented, many view that it is unfair to hold a single party liable for more than her proportional fault. A better way to allocate the amount awarded is a method of allocation called several liability. Under pure several liability, each defendant is responsible for her percentage of fault in an accident. The wrench comes where one of multiple defendants is insolvent and cannot pay her portion of the judgment. When this happens, a way to fix the problem is to reallocate the responsible shares among the other parties depending on their proportion of responsibility. This switches the burden of a co-defendant's inability to pay from the plaintiff to the other co-defendant(s) who can pay. Reallocation is seen to be the fairest way to deal with the problem of insolvency.

In another compromise to insurance companies, The North Carolina House of Representatives has adopted an amendment stating that a liable defendant's share can not be increased by reallocation if her percentage of responsibility is less than the plaintiff's. Therefore, if the plaintiff's fault in an accident is more than that of the solvent co-defendant, the plaintiff will have the entire uncollectible share of the insolvent defendant reallocated to her. This is something that would not happen under our current scheme of contributory negligence. In essence, this is a limitation on the amount that a plaintiff can recover under a modified several liability regime of comparative fault.

House Bill 813 is a compromised bill between two-heavy hitters. As it stands now if passed, North Carolina will enact a law that incorporates modified comparative fault system along with modified several liability, allowing for reallocation of the uncollectible share.