“Personal injury” is an often-used term that means different things to different people. In my 35 years serving as a personal injury attorney, personal injury claims have ranged from physical harm caused by a vehicle accident, a chemical burn injury, dog bites, defective productive liability, to slip-and-fall and swimming pool accidents.
One constant in personal injury cases, regardless of the accident type, is the insurance companies’ attempts to deny claims. The insurance claims adjustor’s job is to deny, delay, and minimize claim payouts. The insurance defense attorney’s job is to win the case or minimize the victim’s award.
Insurance company representatives use many tactics to succeed at their job of saving the company money. In representing thousands of accident victims, the following five are the responses I hear most frequently from insurance companies:
1. “It wasn’t our insured’s fault.”
2. “It was your client’s fault.”
3. “This isn’t a valid claim.”
4. “Your client is not that hurt.”
5. “Your client made his injuries worse.”
Sometimes insurance companies have valid defenses and sometimes they just sound like they are whining. Regardless of how solid a victim’s case appears, an experienced personal injury attorney must be prepared for these defenses.
Defense # 1: Defendant Did Not Cause The Accident
This defense is straightforward: “It wasn’t my fault.” This line dates back to childhood. However, as adults operating under a system of law, the rules for proving “fault” are a little different. An experienced personal injury attorney knows the evidence needed to support personal injury claims.
To win a personal injury claim, the accident victim must show:
- The defendant had a duty of care toward the plaintiff.
- The defendant breached that duty.
Automobile drivers have a duty of care to others using the roadways, including pedestrians, motorcyclists, and vehicle drivers. A driver’s duty is to drive safely and attentively, and obey traffic laws and signals. When a driver speeds, runs a red light, or is distracted while driving, he breaches his duty to others on the road.
The presence of a duty and a breach indicates that the defendant is at fault for the accident. That’s just the first hurdle, though. Even if the accident is the defendant’s fault, the plaintiff doesn’t necessarily prevail.
Defense # 2: The Victim Caused Some Or All Of The Accident
California is a comparative negligence state. More than one person can be found to have caused an accident, with each person being assigned a percentage of fault. An accident victim’s award is reduced by their percentage of fault.
For example, if driver John speeds through a red light and hits pedestrian Jane, John causes the accident. However, if Jane was wearing headphones, looking at her phone, and started crossing without enough time to get across the street safely, Jane might be found 30% at fault for the accident. If Jane’s damages totaled $100,000, she would be entitled to collect $70,000.
Insurance companies will always look for ways to place some of the blame on the victim. Experienced personal injury attorneys prepare for this through careful accident investigations. They also thoroughly understand the law related to the accident type and the evidence required to prove fault.
Defense # 3: The Lawsuit Fails To State An Actionable Personal Injury Claim
This defense sounds like legal jargon. Translated, it means that the accident was simply an accident; no one can be sued.
Such a defense is based on the fact that an actionable personal injury claim must contain four elements. A plaintiff must prove all four elements to win a case.
- The defendant had a duty of care toward the plaintiff.
- The defendant breached that duty.
- The plaintiff suffered an injury.
- The defendant’s breach of duty caused the plaintiff’s injuries.
These are also referred to as duty, breach or negligence, harm, and causation.
The most common element for insurance companies to object to is causation. They will say that even if the defendant caused the accident, that did not cause the victim’s injuries. Oftentimes, the defense will try to show that the victim was already suffering from the problems that he claims the defendant caused. This is why a victim’s medical history can be such a crucial part of a case. If a victim has any kind of pre-existing condition, the defense will try to link that to the post-accident injuries.
Defense # 4: The Plaintiff Is Exaggerating His Injuries
Personal injury claim payouts are directly related to the extent of a victim’s injuries. The more severe and long-lasting the injuries, the greater the compensation. Therefore, it is in the insurance company’s interest to minimize a victim’s damages.
Insurance companies use a variety of tactics to show that the plaintiff is exaggerating injuries and their impact. For example, the defense may obtain secret videos of the plaintiff engaging in activities that the plaintiff has testified in his deposition that he can’t do. The defense may also obtain information from the plaintiff’s social media account or postings by the plaintiff’s friends and followers. Social media posts can contradict plaintiff’s claims about how the injuries affect his work, family, and social life, as well as his physical and emotional condition.
Defense # 5: The Plaintiff Didn’t Mitigate Damage
This defense says that the victim failed to take necessary steps to minimize the severity of his injuries and their costs. Even when a defendant is 100% at fault for an accident, the victim has some obligations. The victim must take reasonable steps to minimize or mitigate the damage caused by the accident. (California Civil Jury Instructions 3930. Mitigation of Damages).
A typical example is when a victim does not seek immediate medical care after an accident. Prompt medical attention often reduces further complications from an injury and reduces treatment expenses. Another example is when a victim does not follow medical advice such as participating in physical therapy. A third example occurs when a plaintiff seeks compensation for lost wages but does not take advantage of reasonable opportunities to work.
In all of these examples, the victim passed up opportunities to minimize the damages he suffered. Therefore, the defense will ask to reduce the personal injury claim payment accordingly.
How a Long Beach Personal Injury Attorney Can Help
Your Injuries are Personal to Me
Even a “slam dunk” personal injury claim will be picked apart by insurance companies. I have advocated for accident victims for 35 years and I always prepare clients for this. Whenever I consult with a new personal injury client, I play “Devil’s Advocate.” I inform the client about the possible defenses I would anticipate, based on the facts of their case.
In my 35 years of practice, I have seen some of the most frivolous defenses asserted that one could possibly imagine. My job is to be ready for those defenses and respond with facts and legal arguments.
If someone has injured you, I can help. Your injuries are personal to me. I continue fighting until you receive just compensation.
Call the Law Office of Michael D. Waks today at 888-394-1174. You can also use the convenient online contact form to schedule your free consultation. You are under no obligation and you will never pay any money unless you recover damages for your injuries.