As one might expect, motor vehicle accident cases are one of the most common types of personal injury cases brought against insurance companies. The facts and circumstances surrounding these accidents also tend to be straightforward and repetitive in nature. As such, insurance defense lawyers are known to employ a number of classic strategies in their effort to poke holes in your Little Rock auto accident insurance claim.
ESTABLISHING THAT THE AUTO ACCIDENT WAS YOUR FAULT
First and foremost, the defense will try to show that your own negligence contributed to the happening of the accident. Depending on jurisdiction, evidence that you bear some degree of responsibility can result in a complete or partial bar to the recovery of money damages. In comparative negligence jurisdictions, a jury will be asked to assign a percentage of fault to every party involved in the accident, including the plaintiff. If the jury decides that the plaintiff was partially at fault, then the amount of damages recoverable by the plaintiff will be reduced accordingly. By contrast, in a contributory negligence jurisdiction, if the plaintiff is found to be at least 50% at fault for the accident, he/she will not recover anything at all.
Here’s an example: Let’s say Plaintiff Pam is suing Dave Defendant for injuries stemming from a car accident. In the moments leading up to the crash, Pam was driving 10 mph over the speed limit as she traveled in the northbound lane of a busy two-way street. As she approached an intersection, she noticed Dave’s car, which had been traveling in the southbound lane on the same two-way street. Dave was now stopped at the intersection with his left indicator on, getting ready to make a left turn. Upon noticing Pam’s vehicle moving toward the intersection at a high rate of speed, Dave rushes to complete the left turn in front of Pam instead of waiting for her vehicle to pass through the intersection. Dave cannot complete his turn in time, and a collision results. Pam, who is now injured, files a lawsuit against Dave for $100,000 in a comparative negligence jurisdiction. The case goes to trial, where Dave’s attorney is able to convince the jury that Pam contributed to the accident through her own negligence in going 10 mph over the speed limit. Following trial, the jury determines that each driver was 50% at fault. Since the amount of damages Pam may recover is reduced by her relative percentage of fault, Pam will be able to recover $50,000, or $100,000 reduced by 50%.
Notably, if the court in the above example was located in a contributory negligence jurisdiction instead of a comparative negligence jurisdiction, the fact that Pam had been found 50% at fault would have operated as a complete bar to recovery. Regardless of jurisdiction, you can be sure that your adversary’s lawyer will do everything in his power to assign you with as much blame as possible in the minds of the jury.
STALLING THE PROGRESSION OF YOUR CASE THROUGH DISCOVERY DEMANDS AND MOTION PRACTICE
During discovery, it’s not uncommon for a plaintiff to be inundated with discovery demands from defense counsel. The purpose here is twofold. For one, the defense wants to find out as much as it can about your accident so it can be adequately equipped for trial. Second, by prolonging the discovery phase, the defense is able to put off the final resolution of your case – whether such resolution ends up occurring as a result of settlement or trial. This tactic has the effect of keeping money in the pockets of insurance companies for a longer period of time.
DRAWING A CAUSAL LINK BETWEEN YOUR INJURIES AND PRE-EXISTING OR AFTER-OCCURRING CONDITIONS
Apart from the issue of fault, the defense will also dedicate a great deal of time and energy to refuting your alleged injuries. The prime opportunities for this will be your deposition and your independent medical examination.
At some point prior to trial, the attorneys for the respective parties will likely schedule depositions of all named parties as well as any witnesses to the accident. As a plaintiff, you can expect during the course of your deposition to face a number of questions concerning the injuries you claim to have sustained as a result of the accident in question. You will also be asked about your medical history more broadly, including the time period before and after your accident. The purpose here is to find out about any pre-existing or after-occurring medical conditions that could be causally related to your present symptoms.
HIGHLIGHTING INEXPLICABLE DELAYS OR GAPS IN MEDICAL TREATMENT
Insurance companies are weary of claimants who exaggerate the severity of injuries in an attempt to inflate the perceived value of their case. One of the ways defense lawyers catch on to this is by obtaining copies of your medical records from the accident. Any delay between the time of your accident and the time you first sought medical treatment is generally viewed as a red flag. This is especially true in situations where you claim to have suffered a very serious injury yet failed to seek emergency room treatment following the incident in question. Gaps between medical treatment tend to raise credibility issues as well.
A related strategy is for the defense to examine the names of medical providers who treated you following your accident and compare them with the providers most commonly used by other claimants who were represented by your attorney. The goal here is to raise an inference that you sought medical treatment at the direction of your lawyer. Defense lawyers will pay special attention to situations where the plaintiff declined to seek medical attention for an extended period of time and then suddenly resumed such treatment or switched to another more “favorable” provider.