In Indiana, when an injured person brings a legal action against the party who injured them, unless the party who caused the damages is a governmental employee or entity, the fault of the wrongdoer, and any other party whom the wrongdoer contends was responsible, is compared to that of the plaintiff.

At first glance, this seems fair. It is not and here is why:

Scenario One: In a case of a car crash between two individuals at an intersection, the jury is told to compare the fault of the two drivers. There is not anything wrong with that.

Assume that the plaintiff incurred medical expenses of $10,000 and $4,000 in lost wages. In addition, the plaintiff has a permanent impairment to the left arm which prevents the plaintiff from having full use and range of motion of the left arm.

Assume further that the jury determines the fault for the collision is evenly divided between the two drivers. In addition to that determination, the jury decides that fair compensation to the plaintiff for medical expenses, lost wages and permanent limitation of plaintiff’s arm is $100,000.00. The jury is then instructed to reduce this verdict for the plaintiff by 50%, leaving the plaintiff with a $50,000.00 recovery.

There is nothing wrong with that. No one believes that a person who is responsible for their own injuries and damages should be able to make someone else responsible for that portion of loss which is their fault. This is true even where the injured party will have to pay all of their medical bills out of their recovery, not just half.

However, change the above fact just 1% and assume that the jury decides that the plaintiff was 51% at fault for the wreck.

Under that scenario, the injured plaintiff does not recover $49,000.00. Instead, the defendant and the defendant’s insurance company receives a $49,000.00 windfall.

This is true because under Indiana’s Comparative Fault Act, even though the wrongdoer was 49% at fault, and thus caused 49% of the injured party’s damages, if the jury determines the injured plaintiff was more than 50% at fault, the plaintiff may not recover any compensation from the party responsible for those damages.

Our Legislature, in enacting the Comparative Fault Act, treated injured parties and those who caused their injuries equally, until the point that it is determined that the injured party is more than 50% at fault for their own injuries. Then, the Legislature gave preference to those who are reckless or negligent and their insurance companies, by providing a windfall to wrongdoers and their insurance companies by providing that they are not required to compensate one dime to the injured party.

Scenario Two: Assume that a factory worker is injured on the job by a defective machine. The worker is automatically entitled to recover from the employer’s insurance carrier, but the recovery is limited to a maximum of $294,000.00. Indiana ranks 44th in recovery allowed to the injured worker. While the worker may also bring a claim sounding in products liability against the manufacturer of the machine, if the manufacturer can show that the worker’s employer was negligent in maintaining the machine, then the manufacturer’s liability will be reduced by the amount of the fault of the employer, even though the worker is not permitted to recover from the employer for its negligent maintenance of the machine.

Scenario Three: A child is a passenger riding in a car driven by his father. Child and his father is in a wreck where it is determined that both father and the other driver are at fault. Under Indiana law, the other driver can name the father as a non-party in the law suit, such that fault can be attributed to father. Any fault accessed against the father reduces the amount that the injured child can recover for medical expenses and damages, even though the child was 0% at fault. And, the law will not require the father’s auto insurance to pay anything to the child for the father’s percentage of fault. This is true despite the fact that any reasonable parent would want their child to recover as a result of the parent’s negligence. As a result of this law, a parent’s insurance company is available for the benefits of a stranger to the family but not the person whom the parent owes the highest duty to, his children.

If you believe that Indiana should amend its Comparative Fault Act to provide for pure comparative fault, and allow recovery by family members as many states have, please contact your state Senator or Representative.

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