Five Common Challenges When Pursuing a Car Accident Injury Lawsuit
The fact that you were injured in a car accident that was the fault of somebody else isn’t necessarily enough to receive compensation. A car accident lawyer may be required to prove your case, and the insurer of the party who caused the accident will be challenging one or more aspects of it. Here are five common challenges that are often encountered during litigation:
If there isn’t an insurer standing behind the driver who injured you, the crash turns into an uninsured motorist claim against your own insurer. If you didn’t have uninsured motorist insurance, your only recourse is to seek a judgment against the negligent driver that you may never collect on. If you do have uninsured motorist coverage, expect a legal fight. Your insurer is stepping into the shoes of the uninsured driver. It may try to treat you with the same disdain that it treats other people who make claims against it.
Personal injury cases involving motor vehicles are almost always brought under the liability theory of negligence. To show negligence, the following criteria must be proved:
- The other driver owed you a duty of care
- There was a breach of that duty
- The breach of duty caused your accident
- The accident was the proximate cause of your injuries
- You suffered legally recognized damages
In their efforts to save money on your case, expect the opposition to challenge the breach, causation, proximate cause, and damages. Your attorney will need to counter those efforts with solid evidence.
It’s not uncommon for an insurance company to challenge both the nature and the extent of damages, especially if a client suffered soft tissue injuries. A fracture can be put on a flash box in a courtroom. All 12 jurors can see that picture of pain. Nearly all soft tissue injuries won’t be seen, even with the most modern diagnostic equipment. There are other strategies that can be used to prove the extent of that soft tissue injury.
4. Pre-Existing Injuries
If a client has a medical record of an old injury to the same part of the body that was injured in their motor vehicle crash, the opposing insurer won’t want to give them full compensation. For example, if a client had a prior back injury with a surgery, it will be argued that he or she is already damaged goods, and a new back injury at the same spinal level won’t be as valuable as a previously uninjured back. That’s not the applicable law. Your attorney should be prepared to argue the law on that issue.
5. Comparative Negligence
Another way that insurance companies try to save money on claims is by using a defense of comparative negligence. The insurer will try to shift some of the fault for the accident over onto the victim. If it’s determined that he or she is partially at fault for the accident, the percentage of fault attributable to them is deducted from their gross award. For example:
- If a client was determined to be 25 percent at fault for an accident, an award of $100,000 would be reduced to $75,000.
- In some states, if a person is 50 or 51 percent at fault for an accident, he or she is barred from an award.
- In other states, a person can be 90 percent at fault for an accident and still collect a 10 percent award.
Insurance companies make money by paying as little as possible or nothing at all on claims. Expect to see one or more of the above strategies used in any motor vehicle accident case that you’re involved in.