How Hawaii's 51% Modified Comparative Negligence Rule Affects Motorcycle Settlements
Hawaii follows a 51% modified comparative negligence rule. If a jury or insurance adjuster finds you are 51% or more at fault for your motorcycle crash, you are legally barred from recovering any compensation.
Motorcycle riders face unique dangers on the roads of Oahu, Maui, and the Big Island. Unfortunately, when a crash occurs, bikers also face an uphill battle against inherent biases. Insurance adjusters often immediately assume the rider was acting recklessly, speeding, or weaving through traffic. In Hawaii, this bias is more than just frustrating-it is a direct threat to your financial recovery.
Because Hawaii uses a modified comparative negligence system, assigning fault is the most critical aspect of your personal injury claim. The insurance company's goal is to shift as much blame onto you as possible to reduce or completely eliminate their financial liability. To fight back against these tactics, you can locate aggressive personal injury lawyers in our US Lawyer directory to protect the value of your claim.
How Hawaii's Modified Comparative Negligence Works
When an accident involves shared fault, state law dictates how compensation is awarded. Under Haw. Rev. Stat. § 663-31, Hawaii operates on a 51% modified comparative negligence rule. This means your financial compensation is reduced by your percentage of fault, but there is a strict legal cutoff.
The 51% Threshold Explained (10% vs 51%)
If the court or insurance adjuster determines you were 10% at fault for the crash-perhaps for slightly exceeding the speed limit-and your total damages equal $100,000, your final award will be reduced by 10%, leaving you with $90,000. However, if the insurance company successfully argues that you were 51% or more at fault for the collision, you cross the legal threshold. At 51% fault, you recover absolutely zero compensation. This is exactly why adjusters fight so aggressively over minor percentages of blame.
Common Adjuster Tactics Against Bikers
Insurance adjusters are highly trained to minimize payouts. They will scrutinize the police report-often documented using a standard form like Form DOT-1-174, Hawaii, Department of Transportation, Motor Vehicle Accident Report-looking for any reason to shift blame. They frequently attempt to secure recorded statements from you shortly after the crash while you are still medicated or in pain, asking leading questions designed to make you admit partial fault.
Speeding and Exhaust Noise Bias
One of the most pervasive biases is the assumption that the biker was driving aggressively. Adjusters may argue that your modified exhaust was too loud and startled a driver, or that your dark clothing made you invisible, despite the fact that the car turned left directly into your right of way. Precedents like Kaeo v. Davis, 68 Haw. 447 (HI Supreme Court 1986) demonstrate how courts evaluate complex liability scenarios and negligence. Overcoming these biases requires strong physical evidence to prove the car driver's primary negligence.
Strategies to Protect Your Injury Claim Value
To prevent the insurance company from weaponizing the 51% rule against you, you must build an impenetrable case. This involves:
- Gathering Evidence: Securing nearby traffic camera footage, dashcam video, and witness statements immediately after the crash.
- Accident Reconstruction: Hiring expert accident reconstructionists to scientifically prove the vehicle's speed and point of impact, refuting the adjuster's assumptions.
- Refusing Recorded Statements: Never giving a recorded statement to the at-fault driver's insurance company without your attorney present.
If the insurance company refuses to fairly evaluate your fault, your attorney will file a civil lawsuit. This case will likely be heard in the relevant circuit court, such as the Third Circuit Court, Hilo or the Fifth Circuit Court, Lihue.
How Much Does it Cost in Hawaii?
Fighting an insurance company over fault percentages requires resources, but it is highly accessible to all injured riders:
- Contingency Fees: Hawaii personal injury attorneys work on contingency, meaning you pay nothing upfront. They typically receive 33% to 40% of the final settlement or verdict.
- Expert Witness Fees: Hiring an accident reconstruction expert to prove you were less than 51% at fault can cost between $3,000 and $10,000, which your attorney usually advances on your behalf.
- Court Costs: Filing a complaint in a Hawaii Circuit Court requires a filing fee of approximately $315, along with service of process fees ranging from $50 to $100.
How Long Does the Process Take?
If liability is clear and the insurance company accepts that their driver was 100% at fault, a settlement can sometimes be reached in 6 to 9 months after you finish medical treatment. However, if the adjuster is aggressively pushing the 51% comparative negligence defense, the case will almost certainly enter litigation. A litigated motorcycle accident case in Hawaii can take 1 to 3 years to reach a trial verdict or a mediated settlement on the courthouse steps.
Frequently Asked Questions (FAQ)
What happens if fault is split exactly 50/50?
Under Hawaii's 51% rule, if you are found exactly 50% at fault, you can still recover compensation, but your total award will be reduced by half. You only lose your right to recover if you are 51% or more at fault.
Can a passenger on the motorcycle be found at fault?
It is extremely rare for a motorcycle passenger to be found at fault for a crash. A passenger can typically seek 100% of their damages from the at-fault driver or even the motorcycle operator if the operator caused the crash.
Should I admit I was going a little over the speed limit?
No. Never admit fault or volunteer that you were speeding to the other driver or their insurance adjuster. Let the physical evidence and the police report speak for themselves.
Does lane splitting affect my percentage of fault?
Yes. Lane splitting is illegal in Hawaii. If you were lane splitting at the time of the crash, the insurance company will strongly argue that you are the primary cause of the accident, pushing you toward the 51% threshold.
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