According to those annoying insurance company commercials that play during movies and TV shows, if you have an injury or other issue, the insurance company immediately takes care of everything. Real life is different. When insurance companies collect premiums, they make money. When these companies pay claims, they lose money. They make enough money, over $1 trillion a year, to fight injury claims.
Frequently, insurance company lawyers use legal loopholes, like the ones listed below, to reduce, or eliminate, compensation in an injury case. More frequently, insurance company lawyers use these defenses to reduce a claim’s settlement value. If a house has foundation problems, it’s worth less. Likewise, if a legal defense could apply, the claim’s settlement value is lower.
So, to win a car crash, dog bite, or other injury case, or to negotiate a favorable out-of-court settlement, a Marietta personal injury lawyer must do more than build a strong negligence case. An attorney must also anticipate common insurance company defenses. Sometimes, visualization is the key to refuting these defenses. If an attorney sees what’s coming, an attorney is more likely to obtain maximum compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
The most common insurance company defense shifts blame for an injury accident from the tortfeasor (negligent actor) to the victim. Usually, the tortfeasor is a negligent driver. Most away-from-home injuries are car crashes. Falls, dog bites, swimming pool drownings, and other premises liability matters are a somewhat distant second. So, for this portion of this post, we’ll focus on car crashes.
This Maniac car crash is a good example of comparative fault. Both drivers were partially at fault for this wreck. The trucker was driving on the wrong side of the road, and since the road was straight, s/he should have seen the girls approaching. While she was behind the wheel, Annie took a selfie and clearly wasn’t concentrating on driving.
All these driving misbehaviors are examples of impaired driving. Operator impairment causes most of the car crashes in Georgia. The five types of impairment are:
- Distraction: Taking pictures or videos behind the wheel might be the most extreme example of distracted driving. Annie took her hands off the wheel (manual distraction), took her eyes off the road (visual distraction), and clearly took her mind off driving (cognitive distraction). Animated discussions with passengers are almost as dangerous.
- Fatigue: We’re speculating now, but the truck driver might have been dangerously fatigued. Drowsy drivers often operate on the wrong side of the road, mostly because their judgement is seriously impaired. Drowsiness, much like alcohol impairment, also adversely affects motor skills and reaction time.
- Alcohol: The dangers of alcohol are well-documented. The severe effects of fatigue usually kick in after about twelve consecutive awake hours. But the impairing effects of alcohol begin after the first drink. Frequently, a third party, like a commercial alcohol provider, is financially responsible for alcohol-related wrecks.
- Drugs: Today’s drugs are incredibly powerful. Medicines ones available only by prescription are now freely available over the counter. As a result, people often misuse Ny-Quill and other strong medicines. We haven’t even talked about marijuana, which is by far the most common driver impairment drug.
- Medical Condition: Motorists with epilepsy, heart disease, and other serious chronic medical conditions often suddenly pass out behind the wheel. A less serious medical condition, like the flu, significantly reduces driving ability, specifically vision and reaction time.
If jurors determine that both drivers were partially at fault, they must divide responsibility on a percentage basis. Georgia is a modified comparative fault state with a 50 percent bar. Victims are entitled to proportionate shares of compensation if they’re no more than 50 percent responsible for an injury accident.
Assumption of the Risk
A form of this doctrine, the seat belt defense, applies in many states. But the Peach State is different. A victim’s failure to wear a seat belt cannot be considered as evidence of negligence or causation. Furthermore, seat belt non-use cannot be used to diminish any recovery for damages. So, in Georgia, assumption of the risk usually only applies in premises liability claims.
If a victim assumes the risk, usually by ignoring a “Beware of Dog” or other warning sign, the jury must divide responsibility proportionately, as outlined above. But we’re getting ahead of ourselves. Before the assumption of the risk defense goes to the jury, the insurance company must establish the legal elements of this defense, which are:
- Voluntary assumption of
- A known risk.
This clip from SpongeBob SquarePants illustrates these legal principles. Loyal viewers may recall that this clip was the tail end of a friendly game of tag that went horribly off the rails. Patrick voluntarily ran off the cliff. But he didn’t voluntarily assume the risk. He’s so stupid he couldn’t read the sign.
This issue often comes up in the real world, but not because the victim is unintelligent. Many people, especially young children, have limited reading and reading comprehension abilities. Many people with limited English proficiency have the same issue. Furthermore, none of this stuff matters unless the victim saw the sign. If Bill put a “Beware of Dog” sign on his fence and took his dog for a walk when the dog bit Sally, she had no warning whatsoever.
For this last point, we’ll go back to car crashes, and a defense that insurance company lawyers often try to use in rear-end and pedestrian accident claims. They argue that the victim slammed on his/her brakes or darted out into traffic. So, the tortfeasor couldn’t prevent a rear-end collision or pedestrian knockdown. The sudden emergency defense has two legal prongs:
- A reasonable reaction to
- A sudden emergency.
To illustrate these elements, let’s look at the 1995 classic Tommy Boy. The hood fly-up was a completely unexpected situation and therefore a sudden emergency. True, in the next scene, we discover that the hood flew up because Tommy forgot to take an oil can off the spout. That possible negligence complicates things, but let’s table that discussion for now. Even if the hood fly-up was a completely unexpected situation, the defense wouldn’t apply, because Tommy drove recklessly after the hood opened.
Many sudden emergency cases, like the aforementioned pedestrian accident, have the opposite issue. Most people react reasonably after they hit people. But a jaywalking pedestrian is an everyday hazard, not a completely unexpected sudden emergency.
A good lawyer is able to visualize the issues in negligence cases. For a free consultation with an experienced Marietta personal injury attorney, contact The Phillips Law Firm, LLC. We do not charge upfront legal fees in these matters.