Florida comparative negligence in a car accident case used to be a question of how much a claim was reduced. Since 2023 it is also a question of whether the claim survives at all, and insurers adjusted their approach accordingly.
The change came from CS/CS/HB 837, enacted as Chapter 2023-15, Laws of Florida. It rewrote the fault rule, shortened the filing deadline for negligence claims, and altered how medical damages are proven. For anyone injured in a Florida crash, the fault rule is the piece that most often decides the outcome.
How Much Fault Can You Have and Still Recover in Florida?
Up to 50 percent. Under Florida’s modified comparative negligence rule, a claimant found more than 50 percent at fault for their own harm recovers nothing, while a claimant at or below that line recovers damages reduced by their percentage of fault.
The rule arrived with HB 837 in 2023 and replaced a system where a claimant could recover something at any percentage of fault. How a percentage gets assigned in a specific crash is a question worth putting to a lawyer.
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Key Takeaways About Florida’s Comparative Fault Rule
- A claimant found more than 50 percent at fault for their own harm may not recover any damages under section 768.81(6), Florida Statutes.
- At 50 percent or less, damages are reduced in proportion to the claimant’s share of fault rather than eliminated.
- Before HB 837, Florida used pure comparative negligence, under which a claimant could recover a reduced amount at any percentage of fault.
- The 51 percent bar does not apply to medical negligence claims under chapter 766, and section 768.81 as a whole does not apply to intentional torts.
- HB 837 also shortened the deadline for most negligence claims from four years to two, for causes of action accruing after March 24, 2023.
Key Figures in Florida’s Comparative Fault Rule
Four numbers do the work in this area of the law, and each comes from a statute rather than from an insurer’s guidance.
| What it governs | The figure | Source |
|---|---|---|
| Fault percentage above which a claimant recovers nothing | More than 50 percent | § 768.81(6) |
| Effective date of the change | March 24, 2023 | Chapter 2023-15, Laws of Florida |
| Deadline for most negligence claims accruing after that date | 2 years | § 95.11(5)(a) |
| Deadline that applied before the change | 4 years | § 95.11 |
Shared fault is argued in a large share of Florida crash claims, and the state has volume behind it. The National Highway Traffic Safety Administration’s State Traffic Data: 2023 Data report recorded 3,396 traffic deaths in Florida in 2023, at a rate of 15.02 per 100,000 people, alongside a far larger number of injury crashes where these percentages are negotiated.
What Changed on March 24, 2023?
HB 837 was approved by the Governor on March 24, 2023 and took effect upon becoming law. It amended section 768.81, Florida Statutes by adding a new subsection (6).
| Before HB 837 | After HB 837 | |
|---|---|---|
| Fault system | Pure comparative negligence | Modified comparative negligence |
| Claimant 20 percent at fault | Recovers 80 percent of damages | Recovers 80 percent of damages |
| Claimant 55 percent at fault | Recovers 45 percent of damages | Recovers nothing |
| Claimant 90 percent at fault | Recovers 10 percent of damages | Recovers nothing |
| Deadline for most negligence claims | Four years | Two years |
The 2022 version of section 768.81 contained no percentage based bar of any kind. Contributory fault reduced an award proportionally and, in the statute’s own words, did “not bar recovery.”
Subsection (6) now reads that “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.”
There is a wrinkle worth flagging for anyone with an older claim. The act’s general applicability provision refers to causes of action filed after the effective date, while the statute of limitations change is expressly written to apply to causes of action accruing after it. That distinction generated real litigation, and it is a question for a lawyer looking at your specific dates rather than a rule of thumb.
What Is Comparative Negligence in Plain English?
It is the legal system for dividing responsibility when more than one person contributed to a crash. Rather than picking a single at fault driver, a jury assigns each party a percentage, and those percentages have to total 100.
The percentages then do two jobs in Florida. They reduce the award proportionally, and they decide whether the claimant is allowed to recover at all.
Section 768.81(2), Florida Statutes provides that contributory fault chargeable to the claimant diminishes the award proportionately “but does not bar recovery, subject to subsection (6).” That final clause, five words long, is the whole change.
The term “negligence action” in the statute is broad. Section 768.81(1) defines it to include claims based on negligence, strict liability, products liability, professional malpractice, and breach of warranty.
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How the 51 Percent Bar Works in Two Examples
The following are hypothetical illustrations using round numbers. They are not case results and do not predict any outcome.
Illustration one: a claimant found 20 percent at fault. Suppose total damages are found to be $100,000, and the jury assigns the claimant 20 percent of the fault for changing lanes without checking a blind spot. The award is reduced by 20 percent, and the claimant recovers $80,000.
Illustration two: a claimant found 55 percent at fault. Same $100,000 in damages, but the jury assigns the claimant 55 percent of the fault. Under the pre 2023 rule the claimant would have recovered $45,000. Under section 768.81(6) the claimant recovers nothing.
The distance between those two outcomes is five percentage points of jury judgment. That is why fault allocation, which used to be a negotiation over how much, is now a fight over whether.
Where Do Insurers Argue Shared Fault Most Often?
In three collision types, and the arguments are predictable enough to prepare for.
Rear end collisions. Florida applies a presumption that the rear driver was negligent, and insurers work to rebut it by arguing sudden stops, non functioning brake lights, or an abrupt lane change into the following driver’s path.
Lane change and merge crashes. Both drivers were moving laterally, so the carrier argues each failed to maintain a lane or to yield. These produce the most genuinely split fault findings.
Intersection collisions. Signal timing, right of way, and speed all come into play, and each side usually has a witness who saw the light differently.
What Evidence Answers a Shared Fault Argument?
- Event data recorder downloads showing speed, braking, and steering input in the final seconds
- Independent witnesses who were not in either vehicle
- Video from intersection cameras, nearby businesses, or a dashcam
- Scene measurements and the physical damage pattern on both vehicles
- Phone and vehicle data where distraction is suspected on the other side
- The crash report narrative, useful for investigation even though section 316.066(4), Florida Statutes limits the report’s use as trial evidence
Objective evidence beats competing recollections, and it is the main tool for pushing a fault percentage back down below the line.
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Which Claims Are Not Subject to the 51 Percent Bar?
Two categories, and they are easy to overlook.
Medical negligence claims under chapter 766 are carved out by the text of subsection (6) itself, which states that the subsection “does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.” Those claims remain under pure comparative negligence.
Separately, section 768.81(4) provides that the section does not apply at all to actions based upon an intentional tort, to certain pollution claims, or to causes of action where joint and several liability is provided by specific chapters of Florida law.
The intentional tort exclusion matters in road rage cases, where a defendant’s insurer may argue the conduct was intentional in order to escape coverage. That argument can change which rules apply to the claim, not only who pays it.
Did HB 837 Also Shorten the Filing Deadline?
Yes, from four years to two for most negligence claims. Section 95.11(5)(a), Florida Statutes now places an action founded on negligence in the two year category.
The act applies the shortened period to causes of action accruing after its effective date, so claims that accrued on or before March 24, 2023 generally keep the older four year period. Which side of that line a specific claim falls on is worth confirming rather than assuming.
Why Careless Words at the Scene Cost Claimants Money
Fault percentages are built out of statements, and the most damaging ones are usually made in the first hour by people trying to be decent.
“I’m sorry” at the roadside is a courtesy. In a claim file it reads as an admission, and it will be quoted back.
The same applies to recorded statements taken in the first days. An adjuster asking whether you might have been going a little fast, or whether you saw the other car in time, is building a percentage. Answering conversationally about an event you are still processing tends to help their side of the arithmetic rather than yours.
None of that means being evasive. It means describing what you know, declining to speculate about what you do not, and getting advice before a recorded statement rather than after.
Where an impaired driver is involved, the analysis changes in the claimant’s favor.
Five Percentage Points Should Not Decide Your Recovery
The difference between recovering most of your losses and recovering nothing now sits inside a judgment call that gets made by people who were not there. That is a strange place for a serious injury claim to rest.
The way to keep it from resting there is evidence, collected early, by someone whose job is to anticipate the argument. Bogin, Munns & Munns offers a free case review and handles personal injury claims on a contingency fee basis.
Call +1 (407) 578-9696 or reach us through our contact form. Our attorneys serve Central Florida from eleven offices along the I-4 corridor and the Space Coast.
Florida Comparative Negligence Questions Answered by Attorneys
Who actually decides what percentage of fault I have?
A jury does at trial, and an adjuster does informally in every settlement negotiation before that. Most claims resolve without a verdict, so the percentage that matters in practice is the one the parties agree is likely, which is why the evidence behind it does most of the work.
Is my percentage applied to the gross settlement or to what I take home?
To the damages figure, before anything else comes out. A jury sets total damages, the court reduces that number by your percentage, and the liens, repayments, fees and costs are then taken from what remains. That order matters, because a fault reduction and a lien reduction compound rather than cancel each other.
Can a settlement offer be withdrawn if new evidence changes the fault percentage?
An offer that has not been accepted can be withdrawn or reduced, and adjusters do revise them when the file changes. That cuts both ways. Evidence produced later frequently moves a percentage in the claimant’s favor, which is why we would rather develop the record before responding to an early number.
Does the 51 percent rule apply to my passenger’s claim?
A passenger who did nothing to contribute to the crash generally carries no fault percentage at all, and can pursue either or both drivers. Where a passenger’s own conduct contributed, such as interfering with the driver, the same rule applies to them individually.
Does the 51 percent rule apply if more than two vehicles were involved?
Yes, and it gets more complicated. Fault is apportioned among every party as a percentage totaling 100, so a claimant in a five car pileup can end up with a small share assigned from several directions at once. Those cases usually need the physical evidence and the vehicle data rather than the drivers’ accounts.
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