Common Insurance Company Defenses
Part of being an aggressive and effective advocate for victims means working hard to develop a winning case. Since the plaintiff has the burden of proof, a successful case is built with solid evidence. An attorney must also have a clear theory of the personal injury case, and be able to explain the applicable law to the jury.
At the same time, an attorney must also anticipate the arguments that the other side will make. Despite what TV commercial jingles often imply, the insurance company is not “on your side.” In fact, insurance company lawyers are committed to minimum compensation for victims, because insurance companies lose money when they pay personal injury claims. What are some common tactics to reduce or deny recovery?
Most of these incidents occur outside the crosswalk, so insurance companies believe they are tailor-made for the sudden emergency defense. This rule completely excuses negligence and puts all the fault on the victim. However, the elements mean that the sudden emergency defense is often inapplicable in these kinds of personal injury cases.
- Unexpected Situation: A “sudden emergency” is a hood fly-up or another completely unanticipated development. Conversely, a pedestrian crossing against the light is more like a pothole in the road, a stalled car on the freeway, or another common hazard.
- Reasonable Reaction: The sudden emergency defense does not eliminate the duty of care, because drivers must still respond reasonably by pulling over to the side of the road or whatever.
This scene from the 1995 film Tommy Boy illustrates both aspects of the sudden emergency defense. Although the hood fly-up is a “sudden emergency,” Tommy drove recklessly after the hood flew up, so the defense would not apply.
In these situations, insurance companies often try to shift as much blame as possible to the victims. For example, the insurance company may admit that its insured driver was intoxicated, but point out that the victim was speeding. Louisiana is a pure comparative fault state that divides damages based solely on liability. So, if the jury determined that the damages were $100,000, the defendant was 30 percent responsible for the personal injury, and the plaintiff was 70 percent responsible, the plaintiff would still recover $30,000. However, in many other states, the plaintiff would receive nothing, because the defendant was not at least 50 percent responsible.
At Hoffoss Devall, we are committed to maximum compensation for personal injury victims. For a free consultation with T-Claude Devall or one of our other Lake Charles personal injury attorneys, call us today.