In a personal injury case, the victim/plaintiff must establish negligence by a preponderance of the evidence (more likely than not). Additionally, there is usually a direct relationship between the amount of evidence the plaintiff presents and the amount of damages the jury awards.
Typically, these damages include compensation for economic losses, such as medical bills, as well as noneconomic losses, such as pain and suffering.
But building a case is not enough. At trial, the Winnebago County jury will hear from both sides. If the insurance company has a defense, your personal injury lawyer should be prepared to refute it. Hopefully, this post will make it easier to understand some of the more common insurance company defenses.
The number of pedestrian fatalities has increased even as the number of motor vehicle crash fatalities has decreased. So, these claims are more common, and the sudden emergency defense is more common as well.
When insurance company lawyers claim that the pedestrian victim “darted out into traffic,” they are setting up the sudden emergency defense. This defense has two elements:
- Sudden emergency, and
- Reasonable reaction.
A scene from 1995’s Tommy Boy illustrates both these prongs. The hood fly-up is a completely unexpected situation, just like a lightning strike or a tire blow-out. So, the hood fly-up is a sudden emergency. But hapless Tommy did not react reasonably to the sudden emergency. Instead of pulling over to the right, he drove recklessly. So, the defense would not apply if Tommy hit another car after the hood flew up.
Last Clear Chance
Tommy Boy is a rather bittersweet comedy, because actor Chris Farley died before his time. The same thing is true of 1987’s Planes, Trains, and Automobiles. Actor John Candy passed away shortly after this movie was made, and director John Hughes passed away in 2009.
In this scene, it appears that loveable lug Dell Griffith was at fault for the collision, because he was indeed going the wrong way. But in head-on collisions, insurance companies often try to use the last clear chance defense, and this doctrine may apply here.
Did you notice that, even though the trucks honked, they made no serious effort to avoid the crash? That failure to avoid a crash is the heart of the last clear chance defense. If one driver has a reasonable chance to avert a wreck but does not do so, that driver is legally responsible for the collision.
Significantly, there is a big difference between the last clear chance and any possible chance. The defense only applies if the driver had a reasonable opportunity to prevent the wreck.
Assumption of the Risk
This defense comes up in some car crash passenger injury claims. But more frequently, insurance company lawyers use the assumption of the risk doctrine in premises liability claims, like swimming pool drownings and dog bites. The doctrine has two elements:
- Voluntary assumption of
- A known risk.
A clip from Patrick Smartpants illustrates these principles. Patrick voluntarily assumed the risk of falling off a cliff. He never stopped running and no one forced him to run off the cliff.
But the risk was not a known one. Patrick could not read or understand the sign. The same conclusion applies if the “Beware of Dog” sign or “No Lifeguard on Duty” sign was not clearly visible. Additionally, many young children and people with limited English proficiency cannot read or understand these signs.
Connect with Assertive Attorneys
Breaking down some common insurance company defenses greatly assists your claim. For a free consultation with an experienced personal injury lawyer in Rockford, contact Fisk & Monteleone, Ltd. We routinely handle matters in Winnebago County and nearby jurisdictions.