If an injured person who makes a claim for noneconomic (pain and suffering) loss was himself negligent in the accident which caused his injuries, the law may reduce the amount of benefits to which the injured Plaintiff is entitled, or it may bar him or her from collecting any benefits whatsoever.
Determining the Extent of the Plaintiff’s Negligence
In any case in which an injured Plaintiff makes a claim for noneconomic damages, the Defendant may assert that the Plaintiff’s own negligence contributed to causing his or her damages. Because a Plaintiff’s negligence may act to limit or bar the Plaintiff from making recovery, it must be determined whether the Plaintiff was in fact negligent, and if so, to what extent.
In that regard, Michigan law instructs that:
“If you find that each party was negligent and that the negligence of each party was a proximate cause of the plaintiff’s injuries or damages, then you must determine the degree of such negligence, expressed as a percentage, attributable to the plaintiff. Negligence on the part of the plaintiff does not bar recovery by the plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.”
MI Civ JI 16.02 and 16.05
So, for example, if it is determined that a plaintiff suffered $100,000 in noneconomic damages, but that the plaintiff was 20% at fault, then the plaintiff’s award would be reduced by 20%, and thus the plaintiff would be entitled to collect $80,000.
Negligence as a Complete Bar to Recovery
Although injured plaintiffs may recover noneconomic damages even if they are contributorily negligent, the Michigan No-Fault Act makes clear that, when the plaintiff’s negligence accounts for more than half of the total negligence or fault in the matter, that plaintiff is completely barred from recovering any damages for pain and suffering.
In that regard, Section 3135(2)(b) of the act, which is sometimes referred to as the 51% rule, states:
“Damages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.”
It should be noted, however, that the statute also makes clear that the 51% rule is only a bar to recovery for claims seeking noneconomic damages. Claims for excess economic damages, such as excess wage loss, are not subject to this rule.