A genuinely wider comparison than people expect
Under ORC § 2315.33, Ohio's comparative fault statute explicitly includes the combined tortious conduct of all other persons — both those the plaintiff seeks recovery from, and those the plaintiff does not. This matters practically: a defense team can argue that some portion of fault belongs to a third party who was never named in the lawsuit, and that fault still counts toward pushing the plaintiff's own percentage higher relative to the combined total.
Why this gives insurers a genuine incentive
Because non-party fault counts in the comparison, a defendant's insurer has a real incentive to identify and emphasize any other person or entity who might share blame — even one the plaintiff chose not to sue — since doing so can shift the proportional math in the defendant's favor without the insurer needing to add anyone new to the case.
Where the underlying fault argument comes from
The building blocks of a fault argument in Ohio are familiar regardless of this wrinkle: the narrative section of the police report, any recorded statement taken from the claimant, witness accounts, photos or video of the scene, and any inconsistencies in how the incident has been described over time.
Why a recorded statement carries extra weight here
An early, informal recorded statement is worth genuine caution in any state, and the stakes in Ohio are sharpened by exactly what's riding on the 51% line. A phrase that shifts an adjuster's internal fault assessment from 45% to 51% doesn't just shrink the payout — it eliminates it entirely.
A separate question: who to actually sue
Because non-party fault already factors into the comparison under Ohio's statute, deciding who to formally name as a defendant involves its own separate strategic considerations — including insurance coverage, solvency, and litigation strategy — that are worth discussing directly with an attorney rather than assuming broader naming automatically changes the fault math.
Who ultimately decides
If a case goes to trial, the jury weighs the conduct of both named and unnamed parties in reaching its fault percentages. In the far more common scenario of a negotiated settlement, the parties effectively work out this same comparison between themselves. See our Ohio comparative negligence calculator to see exactly how sharply the outcome changes on either side of the 51% line.