Comparative Negligence in West Virginia

West Virginia is a partial/modified comparative negligence state, meaning you can’t collect damages if you’re equal to or more than 50% at fault.
Written by Jason Tushinski
Reviewed by Kathleen Flear
West Virginia is a modified comparative negligence law state, which means that a plaintiff’s own negligence cannot be equal to or greater than the defendant’s negligence to collect money after a car accident.
If you’ve been through a car accident, the blame game begins once everyone is accounted for and attended to. The comparative negligence laws in your state will determine how much you can be awarded in damages, so you should be aware of your state’s own laws.
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What is comparative negligence?

Comparative negligence is a legal term explaining how plaintiffs can recover damages suffered in an accident, proportionate to their level of responsibility.
Let’s think about an example. Say you’re involved in a car accident, and you’re assigned 20% of the fault. That means you would be responsible for paying 20% of the damages. On the contrary, if the other driver is assigned 80% of the fault for the accident, they are responsible for paying 80% of the damages, based on their fault level.
Comparative negligence pertains to both personal injury lawsuits as well as third-party insurance claims, meaning a claim you make with another driver’s insurance company. A judge or jury assigns responsibility in a personal injury case. For an insurance claim, a company will utilize comparative negligence to calculate the amount of damages they will pay out after an accident.

Comparative negligence vs. contributory negligence

In the U.S., there are three types of comparative negligence law—pure comparative negligence, partial or modified comparative negligence, or contributory negligence. Each state follows one of these types of comparative negligence laws.
  • Pure comparative negligence: Injured parties can collect damages in proportion to their amount of fault
  • Partial/modified comparative negligence: An injured party can collect damages so long as their proportion of fault does not equal 50% of the blame or exceed 50% of the blame
  • Contributory negligence: An injured party may not collect damages if they share any fault in an accident.
Just 12 states recognize pure comparative negligence, while only 5 states recognize contributory negligence.

What is West Virginia’s comparative negligence law?

West Virginia recognizes partial/modified comparative negligence, meaning an injured party can collect damages proportionate to their level of fault in an accident, so long as their level of fault does not equal or exceed 50% of the damages.
Say you’re found to be 25% at fault in an accident. Since the other driver is 75% at fault in this case, their insurer will pay up to 75% of the damages suffered by you and your vehicle. In this case, as the other driver was found to be more than 50% to blame for the accident, they would not be able to collect damages.

What happens if there are more than two responsible parties?

If you’re involved in an accident where there are more than two responsible parties, you’ll be able to file a claim with either or both insurers representing the at-fault parties. Damages will be awarded based on each at-fault party’s proportion of fault.

How is fault decided in a comparative negligence case?

Insurers use evidence, claims filed, and police reports when assigning blame in regard to car accidents.
If you’re involved in an accident, do your best to document as much evidence as you can, including:
  • Make and model
    of all vehicles involved
  • Time of day accident occurred
  • Weather conditions at time of accident
  • Witness statements
  • Photographs of any damage
Also, call the police if it’s necessary. All of this evidence will play a role in how an insurance company will assign blame in an accident case.

How does car insurance work with comparative negligence?

As West Virginia is a partial/modified comparative negligence state, you’ll be able to make a claim with the other driver’s insurer so long as your portion of assigned blame does not equal or exceed 50% of all responsibility.
For example, let’s say you’re driving along in Charleston without a care in the world, and another vehicle runs a red light at the intersection up ahead. You see the car coming but can’t stop because you're speeding—15 miles above the speed limit, to be exact. You crash into the other vehicle in the intersection.
Upon review by insurers, the other driver was found to be checking sports scores on their phone—it was their inattention that caused the
running of the red light
. Because this driver was distracted, they are assigned 65% of the blame, but since you were speeding, you also are assigned blame—in this case, 35% of the blame. 
Under West Virginia’s partial/modified comparative negligence law, you will be able to claim 65% of your damages from the other driver’s insurer. The other driver won’t be so lucky—since they were assigned more than 50% of the blame in this accident, they will not be able to collect any damages.

How to find affordable car insurance

West Virginia’s partial/modified comparative law may offer some level of protection should you be involved in a car accident, but it's no sure thing—especially if you are found to be more than 50% at-fault in an accident.
That’s why you should always protect yourself with a robust car insurance policy by using
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Yes, your insurance premium will go up if you’re found to be at fault in an accident. Each insurer calculates your rate differently, based on age, driving record, marital status, and other factors. But an at fault accident on your record will certainly boost your premium when it comes time to renew your insurance.
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