Comparative Negligence

Note: This information was developed to provide consumers with general information and guidance about insurance coverages and laws. It is not intended to provide a formal, definitive description or interpretation of Department policy. For specific Department policy on any issue, regulated entities (insurance industry) and interested parties should contact the Department.

Comparative negligence laws dictate how the responsibility for an accident will be shared between the parties directly involved in an accident where bodily injury or property damage was suffered. In these cases, there are two parties involved, referred to as the insured (1st party) and the claimant (3rd party). When both parties contributed to the accident, comparative negligence determines who will receive compensation for losses and how much will be received. Suppose Jane is speeding down the street and Dick makes a left-hand turn in front of Jane, striking her car. Both drivers contributed to this accident and the insurance company, applying comparative negligence laws, will make the determination of liability for damages.

Illinois has adopted modified comparative negligence (735 ILCS 5/2-1116) as the standard for recovery of damages. Under modified comparative negligence, an injured party may recover damages only if he/she is less than 50% at fault for the injury or damages. However, the recovered amount may be reduced in proportion to the degree that the injured party was at fault. For example, if the other driver is determined to be 80% at fault and you are determined to be 20% at fault, you can collect for your damages because you were less than 50% at fault. However, the other driver's insurance company might only offer to pay for 80% of your damages.

The insurance company will make the injured party an offer based on what it believes to be the amount of negligence of its insured. The insurance company may interview the involved parties, including witnesses, and it may also review the accident report in order to determine the amount of the offer. An insurance company may believe that its insured was not more than 50% or more at fault for an accident and may not offer to pay any damages for the loss. The injured party may negotiate with the insurance company until a settlement is reached or until the two parties reach an impasse. If a settlement cannot be reached, the courts make the final determination of comparative negligence.

You may file a complaint with the Department of Insurance. The Department will contact the insurance company involved and ask for a review of the determination. However, the Division cannot make a determination of comparative negligence. The comparative negligence law is a civil law and is enforceable through the courts.