Comparative fault: being partly at fault is not the end of a claim

Minnesota bars a claim only when the claimant's fault is greater than the fault of the person they are suing. That comparison is made defendant by defendant, and the arithmetic runs in an order most people get backwards.

The belief that any fault of your own ends an injury claim is the single most useful misunderstanding an insurer has available, because it is cheap to imply and expensive to correct. Minnesota abandoned that rule in 1969 and has been operating a proportional system since. The statute that does the work is one paragraph long.

The text

Minn. Stat. § 604.01, subd. 1:

Contributory fault does not bar recovery in an action by any person or the person's legal representative to recover damages for fault resulting in death, in injury to person or property, or in economic loss, if the contributory fault was not greater than the fault of the person against whom recovery is sought, but any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering. The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party and the court shall then reduce the amount of damages in proportion to the amount of fault attributable to the person recovering.

Read the operative phrase twice: not greater than. Not “less than.” A claimant whose fault equals the defendant’s is not barred, because equal is not greater. The damages are then cut by the claimant’s own percentage.

The comparison is made one defendant at a time

The statutory phrase is “the fault of the person against whom recovery is sought” — singular. Minnesota has read it that way, and the consequence is severe in a case with more than one defendant.

In Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 207 N.W.2d 706 (1973), a jury found the plaintiff and two defendants each one-third negligent. The plaintiff argued that because the defendants’ negligence was concurrent, his share should be compared against their combined share. The court declined, holding that “in order for a plaintiff to recover from a defendant, his negligence must not be as great as the negligence of the defendant against whom he seeks recovery,” and that extending the unitary treatment beyond joint-adventure cases “would clearly be a change in the substantive rule established by our statute and is properly a function of the legislature.”

The legislature amended the statute in 1978, moving the bar from “not as great as” to “not greater than.” The Minnesota Supreme Court then applied the amended statute in Cambern v. Sioux Tools, Inc., 323 N.W.2d 795 (Minn. 1982), where a jury found the plaintiff 35 percent at fault, one defendant 20 percent, and a third-party defendant employer 45 percent. The court affirmed the refusal to aggregate:

Absent proof of an economic joint venture, current Minnesota law is clear that defendants' fault is not to be aggregated in applying our Comparative Fault Statute, Minn.Stat. § 604.01 (1980).

The narrow exception is a genuine joint venture or joint enterprise. In Hansen v. St. Paul Metro Treatment Center, Inc., 609 N.W.2d 625 (Minn. App. 2000), the court set out the elements it requires — for a joint venture, “(1) contribution — combining either money, property, time, or skill in a common undertaking; (2) joint proprietorship and control — the parties having a proprietary interest and a right of control over the subject matter; (3) sharing of profits — but not necessarily of losses; and (4) contract — either express or implied,” and for a joint enterprise, a mutual undertaking for a common purpose plus a right to some voice in the direction and control of the means used. The bar is a real one: in Cambern the supreme court quoted the Wisconsin formulation the doctrine descends from — “more is required than identical acts or omissions before the negligence of separate individuals may be combined for comparison purposes in determining liability.” Cambern, 323 N.W.2d at 799 (quoting Reiter v. Dyken, 95 Wis. 2d 461, 290 N.W.2d 510, 514 (1980)).

What “fault” means

Subdivision 1a is broader than negligence:

"Fault" includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an express consent or primary assumption of risk, misuse of a product and unreasonable failure to avoid an injury or to mitigate damages, and the defense of complicity under section 340A.801. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. The doctrine of last clear chance is abolished.

Evidence of unreasonable failure to avoid aggravating an injury or to mitigate damages may be considered only in determining the damages to which the claimant is entitled. It may not be considered in determining the cause of an accident.

That second paragraph is a limit an insurer’s framing frequently ignores. Gaps in treatment, or a decision not to follow a recommendation, belong to the damages question. They are not evidence about how the collision happened, and the statute says so.

Section 340A.801, subd. 3 confirms the connection in the other direction: actions under Minnesota’s dram shop statute “are governed by section 604.01.”

Apportionment among defendants is separate from the bar

Section 604.01 decides whether a claimant may proceed against a given defendant. Section 604.02, subd. 1 decides who pays what once liability exists:

When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that the following persons are jointly and severally liable for the whole award:

(1) a person whose fault is greater than 50 percent;

(2) two or more persons who act in a common scheme or plan that results in injury;

(3) a person who commits an intentional tort; or

(4) a person whose liability arises under chapters 18B … 115 … 115A … 115B … 115C … and 299J … public nuisance law for damage to the environment or the public health, any other environmental or public health law, or any environmental or public health ordinance or program of a municipality as defined in section 466.01.

The section states its own effective reach: “This section applies to claims arising from events that occur on or after August 1, 2003.” Subdivision 2 provides a reallocation mechanism — on motion made not later than one year after judgment is entered, the court determines whether any part of a party’s equitable share is uncollectible and reallocates it among the other parties “including a claimant at fault,” according to their respective percentages. Subdivision 3 handles product cases differently, reallocating an uncollectible amount among others in the chain of manufacture and distribution rather than among the claimant or others outside that chain.

The order the subtractions happen in

The most consequential thing about the fault percentage is not its size but its position in the sequence, and two statutes fix that position deliberately.

Section 65B.51, subd. 1, on the no-fault deduction in a motor vehicle negligence action:

… the court shall deduct from any recovery the value of basic or optional economic loss benefits paid or payable, or which would be payable but for any applicable deductible. In any case where the claimant is found to be at fault under section 604.01, the deduction for basic economic loss benefits must be made before the claimant's damages are reduced under section 604.01, subdivision 1.

Section 548.251, subd. 3(c), on collateral source reductions:

In any case where the claimant is found to be at fault under section 604.01, the reduction required under paragraph (a) must be made before the claimant's damages are reduced under section 604.01, subdivision 1.

Both point the same direction. The statutory subtractions come off the gross damages figure, and the claimant’s fault percentage is applied to the reduced number rather than to the original one. Reversing the two produces a different answer, and it is the wrong one.

Payments made along the way are not admissions, and are credited

Section 604.01, subd. 2 provides that a settlement with or payment made to an injured person, or to others on that person’s behalf with their permission, “shall not constitute an admission of liability by the person making the payment or on whose behalf payment was made.” Subdivision 3 says the same for property damage and economic loss. Subdivision 4 keeps those payments out of evidence: “Except in an action in which settlement and release has been pleaded as a defense, any settlement or payment referred to in subdivisions 2 and 3 shall be inadmissible in evidence on the trial of any legal action.”

Subdivision 5 then handles the accounting, including the case where the payments turn out to have been generous:

All settlements and payments made under subdivisions 2 and 3 shall be credited against any final settlement or judgment; provided however that in the event that judgment is entered against the person seeking recovery or if a verdict is rendered for an amount less than the total of any such advance payments in favor of the recipient thereof, such person shall not be required to refund any portion of such advance payments voluntarily made. Upon motion to the court in the absence of a jury and upon proper proof thereof, prior to entry of judgment on a verdict, the court shall first apply the provisions of subdivision 1 and then shall reduce the amount of the damages so determined by the amount of the payments previously made to or on behalf of the person entitled to such damages.

Note the ordering in the last sentence, which is the reverse of the two provisions above: the comparative fault reduction is applied first, and advance payments are credited against the reduced figure afterward. Statutory subtractions come off before the percentage. Voluntary advance payments come off after it.

What this page is not

It describes how Minnesota allocates fault and what that allocation does to a damages figure. It does not estimate anyone’s percentage, which is a jury finding made on evidence, and it does not apply the rule to any reader’s collision.