Two very different arguments, two very different stakes
Under A.R.S. § 12-2505, an Arizona insurer arguing over ordinary fault is fighting over a percentage — every point it wins reduces the payout proportionally, but the claim itself survives. Arguing that a claimant's conduct was willful or wanton is a fundamentally different, much higher-stakes move: if it succeeds, it can strip away comparative-negligence protection entirely, pushing the claim toward the all-or-nothing territory of old-style contributory negligence. Understanding which of these two arguments is actually being made is genuinely important.
Ordinary fault: the everyday negotiation
For the large majority of claims, the fight is over an ordinary fault percentage, built from familiar sources: the police report's narrative, recorded statements, witness accounts, photos or video of the scene, and any gaps or inconsistencies in medical treatment. This is the same kind of fault argument that plays out across nearly every comparative negligence state, and every additional point conceded here comes directly out of the final recovery.
Willful or wanton: a genuinely different, higher-stakes argument
The far more serious argument is that the claimant's own conduct wasn't merely careless, but intentional, willful, or wanton — conduct like excessive speed well beyond the posted limit, intoxication, knowingly ignoring a serious and obvious hazard, or similarly reckless behavior. Because this finding can eliminate comparative-negligence protection under A.R.S. § 12-2505(A) entirely, it's a fundamentally different kind of fight than an ordinary percentage dispute, and insurers have a real incentive to push toward this characterization whenever the facts plausibly support it.
A jury decides this, not the adjuster and not a judge
It's genuinely important to understand that an insurer arguing willful or wanton conduct is making an argument, not issuing a final ruling. Because of Article 18, Section 5 of the Arizona Constitution, whether conduct rises to that level is a question of fact that must always be left to a jury — the Arizona Supreme Court has specifically confirmed a jury cannot simply be instructed to find against a claimant on this point. An adjuster's characterization of conduct as willful or wanton is a negotiating position, not an automatic legal conclusion.
Why a recorded statement deserves real caution here
Because a single imprecise or offhand phrase can potentially support either kind of argument — an ordinary fault percentage or, in more serious situations, a willful-or-wanton characterization — an early recorded statement carries genuinely higher stakes in Arizona than it might in a state without this particular exception. See our Arizona comparative negligence calculator to see how dramatically the outcome differs between an ordinary fault dispute and a willful-conduct argument.