Florida’s personal injury landscape shifted significantly on March 24, 2023, when Governor Ron DeSantis signed House Bill 837 into law. Florida abandoned its decades-old pure comparative fault system and replaced it with a modified comparative fault standard.
If you were injured in Florida after March 24, 2023, this change affects your right to recover compensation, and understanding how it works can make a real difference in how you approach your claim. As always, speak to a Fort Lauderdale personal injury lawyer for more information.
What Is Comparative Fault?
Comparative fault is the legal framework courts use to assign responsibility when more than one party contributes to an accident. In many crashes, slips and falls, and other injury events, the injured person may have played some role in what happened. Comparative fault rules determine how that shared responsibility affects what the injured person can recover.
Before March 2023, Florida used a pure comparative fault system. Under that approach, an injured person could recover compensation even if they were 99 percent at fault for their own injury. Their percentage of fault would simply reduce their award. A person 90 percent at fault for a crash could still recover 10 percent of their damages from the other party.
That system is now gone for most personal injury cases in Florida.
Florida Now Uses A Modified Comparative Fault Model with a 51% Bar
Under Florida Statute § 768.81, as amended by House Bill 837, Florida now follows a modified comparative fault system with a strict 51% bar. Here is how it works:
- If you are found 50 percent or less at fault for the accident, you can still recover compensation, but your percentage of fault reduces your award.
- If you are found more than 50 percent at fault for the accident, you are completely barred from recovering any compensation at all.
For example, if your total damages are $200,000 and you are found 30 percent at fault, you recover $140,000, which is 70 percent of your total damages. But if you are found 51 percent at fault, you recover nothing, regardless of how serious your injuries are or how much the other party contributed to the crash.
This is a huge departure from the old rule. Under pure comparative fault, a person 60 percent at fault could still recover 40 percent of their damages. Under the current law, that same person recovers nothing.
The Medical Malpractice Exception
Under § 768.81(6), the modified comparative fault rule explicitly does not apply to actions for personal injury or wrongful death arising out of medical negligence.
Medical malpractice cases in Florida still follow the pure comparative fault standard. This means that a patient who was partially at fault for their own medical harm can still recover compensation proportionate to the defendant’s share of fault, regardless of the patient’s percentage of fault.
This distinction matters in practice. If you were injured in a car accident, a slip and fall, a premises liability incident, a dog bite, or most other standard negligence situations, the 51% bar applies. If your injury arose from a doctor’s or hospital’s negligence, the old pure comparative fault rule still governs your case.
How Insurance Companies Use Comparative Fault Against You
Understanding this law matters from the moment you file an insurance claim, because insurance adjusters use comparative fault as a primary tool to reduce or eliminate what they pay.
Under the modified comparative fault system, every percentage point of fault assigned to you directly reduces your recovery. Shifting even a modest portion of fault onto an injured claimant can save an insurer thousands of dollars. As a result, adjusters are trained to look for any evidence that the injured party contributed to the accident.
Common tactics insurance companies use include:
- Arguing that you were distracted, speeding, or inattentive without direct evidence.
- Using your recorded statement against you if you speculated about what you “could have done differently.”
- Raising pre-existing conditions or prior injuries to argue that your damages are overstated.
- Claiming you failed to take reasonable precautions, such as wearing a seatbelt or watching where you were walking.
Under pure comparative fault, these arguments could only reduce a recovery. Under modified comparative fault, they can eliminate it entirely if the insurer can push your fault percentage above 50 percent.
What This Means for Your Case
The shift to modified comparative fault makes evidence preservation and early legal involvement more important than ever. Because the difference between 49 percent fault and 51 percent fault is the difference between recovering something and recovering nothing, how fault gets documented and argued in the early stages of a claim can determine the entire outcome.
Steps that matter more than ever after an accident:
- Getting a police report filed with an accurate account of what happened.
- Photographing the scene, vehicle positions, road conditions, and your injuries.
- Collecting witness contact information before people leave the scene.
- Seeking prompt medical treatment and following your doctor’s recommendations consistently.
- Avoiding any statement that could be characterized as an admission of fault.
- Retaining an attorney before giving a recorded statement to any insurance company.
Frequently Asked Questions
When did Florida’s modified comparative fault law take effect?
The law took effect on March 24, 2023, when Governor DeSantis signed House Bill 837. It applies to accidents that occurred on or after that date. Accidents before March 24, 2023, are generally still governed by the old pure comparative fault standard.
What is the difference between pure and modified comparative fault?
Under pure comparative fault, an injured person can recover damages no matter how much at fault they were — their own percentage of fault simply reduces their award. Under modified comparative fault with a 51% bar, a person more than 50 percent at fault for their own injury cannot recover anything.
Does the 51% bar apply to all personal injury cases in Florida?
No. The medical malpractice exception under § 768.81(6) means that cases involving medical negligence under Chapter 766 are still governed by pure comparative fault. The 51% bar applies to most other negligence cases — car accidents, slip-and-fall, premises liability, product liability, and similar claims.
Can an insurance company decide fault on its own?
Insurance companies make their own internal fault determinations during the claims process, but those determinations are not final. If your case goes to litigation, fault is ultimately determined by a judge or jury based on the evidence presented. An experienced attorney can challenge unfair fault allocations made by insurance adjusters.
Does Florida’s comparative fault law affect wrongful death cases?
Yes, for most wrongful death cases. If a decedent had been barred from recovering under the 51% rule had they survived, the wrongful death claim is similarly affected. The medical malpractice exception applies here as well.
Talk to a Florida Personal Injury Attorney
Florida’s modified comparative fault law means that how fault gets assigned in your case has higher stakes than ever before. At Rosen Injury Law, we know how to investigate accidents thoroughly, push back against unfair fault assignments, and build the strongest possible case for our clients.
With more than 20 years of experience and over $125 million recovered for injured Floridians, we’re ready to put that experience to work for you. We handle all personal injury cases on a contingency fee basis, so you pay nothing unless we win.
Call us at (954) 787-1500 or complete the short form on our contact page to schedule your free consultation.