Is Your Lexington Personal Injury Lawyer Ready For These Common Car Wreck Claim Defenses?

by | Jan 7, 2022 | Firm News

The average economic impact of a serious injury collision, mostly lost wages, property damage, and medical bills, is almost $100,000. Fair compensation for noneconomic losses, such as pain and suffering, might be three times that amount. Since co much money is at stake in these claims, insurance company lawyers are determined to reduce or deny compensation to victims. Typically, these lawyers begin work within a few hours of a bad wreck.

Insurance defense lawyers are aggressive. But they are also predictable. They generally use the same car crash legal defenses over and over again. This predictability is often their undoing. These defenses are mostly based on the evidence. So, if an attorney collects sufficient evidence, it’s usually much easier to refute these defenses in court. Insurance defense lawyers are easily intimidated. If the evidence is strong enough, they normally give up.

Comparative Fault

Large-scale tragedies like catastrophic injury collisions often have multiple causes. That aphorism is at the root of the comparative fault defense. Contributory negligence is one of the most common vehicle collision defenses.

Insurance company lawyers try to shift blame for the accident from the tortfeasor (negligent driver) to the victim. For example, Ben might change lanes without signaling and pull in front of Jerry, who is speeding. The division of fault depends on the specific facts. In the Ben & Jerry example, if Ben looked but didn’t signal or Jerry was only slightly speeding, the jury would probably adjust fault accordingly. The law requires jurors to divide fault on a percentage basis, such as 50-50 or 80-20.

Most states cut off compensation if the victim is more than 50 percent responsible for the wreck. But Kentucky is a pure comparative fault state. Even if the victim is 99 percent responsible for the crash, the tortfeasor is responsible for a proportionate share of damages.

Sudden Emergency

Comparative fault comes in many forms and is a possible defense in almost all injury cases. For example, if the victim was a pedestrian, insurance company lawyers often claim s/he did not stop and look both ways or s/he crossed against the light.

Pedestrian injuries often involve the sudden emergency defense as well. Comparative fault reduces damages in Kentucky. But if the sudden emergency defense applies, the victim is ineligible for compensation. This defense has two elements:

  • Reasonable Reaction: Most people react reasonably to pedestrian accidents and other vehicle collisions. They pull over to the right, render aid if possible, and wait for emergency responders to arrive.
  • Sudden Emergency: In the Bluegrass State, a “sudden emergency” is normally a completely unexpected situation. The duty of reasonable care doesn’t require drivers to be prepared for the unexpected. Jaywalking pedestrians are everyday hazards. So, they are not “sudden emergencies” in this context.

This clip from Tommy Boy illustrates both elements of the sudden emergency defense. The hood fly-up is a completely unexpected situation and therefore a sudden emergency, notwithstanding the fact that Tommy left an oil can in the spout. But after the sudden emergency, Tommy didn’t react reasonably. Instead, he drove recklessly. Therefore, the defense wouldn’t apply.

Last Clear Chance

This doctrine is closely related to sudden emergency. Last clear chance often comes up in head-on and rear-end claims.

The duty of reasonable care might not require drivers to prepare for the unexpected. But it does require them to avoid accidents if possible, regardless of what the other driver does or doesn’t do. So, if Driver A anticipated a crash but did nothing to avoid it, Driver A might be legally responsible for damages, even if Driver B changed lanes without signaling, stopped suddenly and without warning, or crossed the center line.

The surprisingly educational clip from Tommy Boy also illustrates the last clear chance defense. After the hood flew up, Tommy recklessly crossed the center line. If he had collided with another vehicle, the last clear chance doctrine might have protected him, if the oncoming vehicle had a chance to get out of the way. 

Then again, maybe not. Tommy was driving so recklessly that no one could have predicted what he would do next. Furthermore, in high-speed accidents like this one, events happen so quickly that drivers usually have little time to react. This defense only applies if a driver had the last clear chance, as opposed to any possible chance.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act. #goodelawyers