On average, insurance companies pay about $20,000 to settle a personal injury and property damage vehicle collision claim. Insurance companies make money when they collect premiums and lose money when they pay claims. So, to avoid payment, insurance companies have posses of lawyers who will do anything within the law to reduce or deny compensation to victims.
Therefore, building a claim for damages is not enough. A good Marietta personal injury attorney should also anticipate some common insurance company defenses in these cases. The better prepared a lawyer is, the more compensation the attorney usually wins.
Typically, this compensation includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Comparative Fault
Contributory negligence is probably the most common insurance company defense in car wreck claims. Most accidents have more than one cause, and intersection collisions are a good example. Assume Billy rolled through a stop sign and Kenny sped around a corner as he approached the intersection. Based on those facts, it’s difficult to ascertain fault.
When these cases go to court, insurance company lawyers must first convince the judge that both drivers were partially at fault. If Kenny was moving so fast that he partially lost control of his car, Billy’s stop sign roll-through probably did not contribute to the crash in any meaningful way.
Next, insurance company lawyers must convince a jury. It’s much harder to convince twelve different people that a certain fact is true by a preponderance of the evidence.
If the judge rules that contributory negligence may have been a factor and the jury agrees, the jury must divide fault between the two sides on a percentage basis (e.g. 50-50 or 80-20). In other words, the jury reduces the tortfeasor’s fault if the victim played a part in the crash.
Georgia is a modified comparative fault state with a 50 percent bar. So, if the tortfeasor was at least 50 percent responsible for the wreck, the victim receives a proportional share of damages. Other states have different rules. Neighboring North Carolina is a pure contributory negligence state. If the victim is even 1 percent responsible for the crash, the victim is not entitled to any compensation.
Last Clear Chance
This defense is quite common in intersection collisions as well. Last clear chance also comes up in wrong-way crashes. To illustrate this doctrine, let’s return to the above example and change the facts a bit.
Assume Kenny was not speeding, and Billy went through the stop sign at full speed. Police officers at the scene would almost certainly give Billy a citation. But that finding of fault is only preliminary.
Even though Billy ran a stop sign, Kenny still had a duty of reasonable care. That duty requires all drivers to avoid accidents if possible. So, if Kenny had a reasonable chance to avoid the crash, maybe by slowing down, he is legally responsible for the wreck if he did not take advantage of this chance.
Legal doctrines like last clear chance underscore the need to always consult with an attorney after a car wreck. Even if you think you were at fault, and even if officers gave you a ticket, you may still be entitled to compensation.
This rule is extremely fact specific. If traffic is heavy, the road is wet, or conditions are otherwise less than ideal, emergency maneuvers like sudden stops may cause worse crashes than they prevent. As a result, this doctrine does not apply in these situations.
Sudden Emergency
This rule, which often comes up in pedestrian accidents, is basically the legal cousin of last clear chance. Both doctrines are an offshoot of contributory negligence. This clip from 1995’s Tommy Boy is a good illustration of sudden emergency’s elements, which are a reasonable reaction to a sudden emergency.
The hood fly-up is a sudden emergency, because it is a completely unexpected situation. In the next scene, we learn that Tommy’s negligence may have contributed to the hood-fly up. That complicates things, but that’s the subject of another blog.
In contrast, events like jaywalking pedestrians and stalled cars are not sudden emergencies. These hazards and obstacles are common, so drivers should anticipate them. It does not matter if the pedestrian victim “darted out into traffic” or not.
So, Tommy is immune according to this part of the test. But he did not react reasonably to the sudden emergency. Instead, he drove recklessly and even crossed the center line.
Unless the victim’s fault exceeded 50 percent, contributory negligence only reduces the amount of compensation. But sudden emergency and last clear chance excuse liability altogether.
Lack of Evidence
If a Marietta personal injury attorney is diligent, lack of evidence is usually not a problem. The burden of proof is only a preponderance of the evidence (more likely than not).
Picture two equally sized stacks of paper sitting next to each other. If someone moves one sheet from the left to the right, the stack on the right is larger than the one on the left. That’s a picture of a preponderance of the evidence.
However, negligence claims do have several moving parts. Attorneys must establish all four parts of a claim, which are legal duty, violation of duty, causation, and damages. A lack of evidence on any one point sinks the claim.
Assumption of the Risk
In car crash claims, assumption of the risk usually involves not wearing a seat belt. In Georgia, seat belt-non-use is inadmissible for damages, causation, or negligence purposes. But that prohibition does not stop insurance company lawyers from trying the “plant the seed” approach. During witness questioning or oral arguments, a lawyer casually mentions that the victim was not wearing a seat belt. Then, the lawyer hopes this seed takes root with the jury. This tactic may seem rather farfetched, but it often works.
Once again, a Marietta personal injury attorney must be diligent. Attorneys often file motions in limine in these situations. These motions prohibit lawyers from bringing up certain things during the trial, such as seat belt non-use. Additionally, an attorney should ensure that the judge’s instructions to the jury clearly state the law in this area.
Connect with an Aggressive Lawyer
Insurance company lawyers have a few tricks up their sleeves, but these tricks usually do not derail a solid claim for damages. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. Attorneys can connect victims with doctors, even if they have no money or insurance.
