The Top Five Insurance Company Defenses and How to Deal With Them

by | May 24, 2021 | Car Accidents, Injuries

Unintentional injuries, mostly falls, motor vehicle collisions, and drug overdoses, send more than 24 million people to a hospital Emergency Room every year. A handful of companies handle most of these claims. So, their lawyers are very experienced in this area. They know what’s at stake, and we are not just talking about money. Frequently, since insurance companies do not want to set a precedent for future payment, they often fight claims to the bitter end. These fights usually involve one of the negligence defenses listed below.

Because insurance defense lawyers are so experienced, victims need an equally experienced Lexington personal injury lawyer to fight for them. An effective lawyer has the resources, both in terms of time and treasure, to collect evidence. Furthermore, your lawyer must have the legal savvy necessary to combine these ingredients and stave off any insurance company defenses.

Lack of Evidence

The burden of proof in a negligence claim is only a preponderance of the evidence, or more likely than not. That’s the lowest burden of proof in Kentucky law. So, the lack of evidence defense does not come up very frequently. However, there are some exceptions.

Nursing home falls and rural vehicle collisions spring immediately to mind. Most nursing home residents are alone when they fall. If the victim is with someone, the victim’s risk of a fall is much lower. The buddy looks out for hazards and also provides physical support. As for rural collisions, most people know how lonely a long stretch of two-lane road can be. Usually, the victim is the only friendly witness, and this testimony is obviously unavailable in a fatal accident claim.

Fortunately, Kentucky has a very broad res ipsa loquitur rule. This doctrine is especially relevant in fall claims. Jurors may presume negligence if the defendant had exclusive control over the premises and negligence normally causes that kind of accident.

Assumption of the Risk

This defense is also common in fall and other premises liability claims, like dog bites and swimming pool drownings. It also sometimes comes up in passenger injury claims. Victims are legally and financially responsible for their own injuries if they:

  • Voluntarily assume
  • A known risk.

Frequently, the assumption of the risk defense hinges on a “Caution: Wet Floor” or other warning sign. Such signs make the defense easier to prove, but they don’t conclusively establish it. Insurance company lawyers must still prove that the victim saw the sign, could read the sign, and could understand what the sign meant.

These elements are especially difficult to show if, as is frequently the case, the victim was a young child or had limited English skills.

Last Clear Chance

Many of the aforementioned rural wrecks involve the last clear chance defense. Frequently, rural drivers illegally cross the center line for some reason. Perhaps they are recklessly trying to pass someone, or they fall asleep at the wheel, or they are driving too fast and lose control of their vehicles.

Emergency responders almost always assign fault to the wrong-way driver. But this determination is only preliminary, because of this legal doctrine.

Assume that Chris drifts across the center line on a relatively straight road that has little traffic. Although David clearly sees Chris approach the center line and finally cross it, he doesn’t change lanes, slow down, honk at Chris, or do anything else to avoid the wreck.

Legally, David could be legally responsible for this wreck, since he had the last clear chance to avoid it.

Note that there’s a big difference between the last clear chance and a possible chance. Many times, the wrong-way driver is operating so erratically that it’s impossible to anticipate the crossing. Other times, traffic, weather, or other conditions make emergency maneuvers impossible. Still other times, everything simply happens too fast.

Sudden Emergency

Insurance company lawyers often try to use this defense in pedestrian injury claims. This doctrine excuses negligence if the tortfeasor (negligent actor):

  • Reasonably reacts to
  • A sudden emergency.

Many times, lawyers argue that the victim “darted out into traffic” so the crash was inevitable. This language sets up the sudden emergency defense.

But this defense has limited use. It usually only applies to hood fly-ups and other completely unanticipated situations. A jaywalking pedestrian, even one who carelessly walks out into traffic, is not a “sudden emergency.” Neither is a large pothole or a stalled car. The duty of care requires motorists to anticipate these hazards and deal with them effectively.

Comparative Fault

The contributory negligence defense, in one form or another, arises in pretty much every injury claim. Dog bite victims provoked the animals, pedestrian victims didn’t look both ways, fall victims didn’t watch where they were going, and so on.

When jurors hear such evidence, they must divide fault on a percentage basis between the two parties. Kentucky is a pure comparative fault state. Therefore, even if the victim was 99 percent responsible for the accident, the other party is still responsible for a proportionate share of damages.

Attorneys usually have two chances to blunt this defense. First, as discussed above, these defenses don’t legally apply to all situations. Second, an attorney can convince jurors that the victim’s comparative fault didn’t contribute to the accident in a meaningful way.

Despite what TV commercials imply, insurance companies do whatever it takes to reduce or deny compensation to accident victims. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters. #goodelawyers