What are some of the more common issues and insurance defenses in car accident cases?
You may have heard of “the three D’s” of insurance defense – deny, delay, and defend. One thing you can be sure of – the at-fault driver’s insurance company does not want to pay your claim. If they do pay your claim, they will attempt to pay the least amount possible after delaying for as long as possible.
Below, we’ll take a look at some of the more common defenses in car accident cases and other issues that may arise that could prevent you from recovering full and fair compensation.
Insurance Defenses in Car Accident Cases: Causation Issues
Causation issues are probably raised most often by insurance companies as defenses in car accident cases.
As the injured party, you have the burden of proof to show that the other driver was negligent – 1) that the other driver owed a duty to you (to drive safely and not violate traffic laws, for example), 2) that the other driver breached that duty (by driving carelessly or by violating the traffic laws), and 3) that their actions were the proximate cause of your injuries.
If the other driver’s actions were not the proximate cause of your injuries, the insurance company doesn’t have to pay.
What if you were already injured before the car accident?
Insurance defense attorneys will also attempt to deny or limit your claim based on pre-existing injuries whenever possible. Although it is true that the other driver is not responsible for a pre-existing injury that happened before the car accident, they are responsible for any additional damage caused by the accident.
Not only is the other driver responsible for injuries other than the pre-existing injury, but, under the “eggshell plaintiff rule,” they are also responsible for making your pre-existing injury worse. For example, if you have a broken arm that is unrelated to the car accident and it is re-injured by the car accident, the other driver is liable for the aggravation or worsening of the pre-existing injury.
Delays in Treatment
You should immediately seek medical attention after a car accident, and then follow up with any recommendations made by the doctors.
Because insurance defense attorneys will attempt to claim that your injuries are faked, that they are not as serious as you claim, or that the injuries happened after the car accident if you delay seeking treatment. This is not a time to “tough it out” or wait to see if the pain goes away, because you can be sure the defense will attempt to use your delay against you.
In some cases, including some spinal cord, brain, neck, back, or other soft tissue injuries, there can be a delayed onset of symptoms. When this happens, it is critical to document the injury and the reason for the delayed onset as soon as possible, because the defense will attempt to deny or limit your claim based on the delay.
When there are multiple parties involved in a car accident, the insurance companies will attempt to blame the other drivers to the extent possible.
For example, if you were rear-ended by a blue car after they were rear-ended by a red truck, the blue car’s insurance company will blame the red truck’s driver and vice-versa. Depending on the facts, however, either or both of the other drivers may be at fault.
Insurance Defenses in Car Accident Cases: Comparative Negligence
SC has a “modified comparative negligence rule,” where your recovery can be denied if you are more than 50% at fault. If you were less than 50% at fault, your recovery will be reduced by the percentage of fault that the jury allocates to you.
This means that the other driver’s insurance defense attorneys will look for any way that they can say you were at fault in the accident to deny or limit your recovery. If you were partially at fault, however, that does not prevent you from recovering.
For example, if you were making a left turn in an intersection but did not use your blinker, you may be partially at fault for the car accident. But, if the other vehicle ran a red light and slammed into your car as you were turning, reasonable jurors will find that the accident was the other driver’s fault, and your failure to use a turn signal contributed little or nothing to the accident.
Damages Issues in Car Accident Cases
Damages issues are also common in auto accident cases, whether it is the amount of damages claimed or the inability to collect damages because of insufficient insurance coverage.
For any auto accident case to be viable, you must have 1) liability, 2) damages, and 3) a source of recovery. For example, if you are in an accident and it was clearly the other driver’s fault, but you did not suffer any injuries, there may not be sufficient damages to file a lawsuit.
If the only damage caused was to your vehicle, the insurance companies will usually take care of it without the need for attorneys to get involved.
Another issue that could arise is a lack of insurance coverage. If you were involved in an accident with serious injuries and your damages add up to well over $1 million, but the other driver has no assets and carried only the minimum coverage, your attorney will attempt to find all possible sources or recovery, but you may not receive full and fair compensation from the other driver.
Possible sources of recovery that we will look for include:
- The other driver’s primary auto insurance policy,
- Any other insurance policies, including umbrella policies, that the other driver may have,
- Your own uninsured or underinsured insurance policy,
- Any other policies that you own that may provide coverage,
- All possible defendants who were responsible for the accident (and their insurance policies), and
- Any assets owned by the defendant or defendants that could be seized to pay a judgment.
If you are not sure whether insurance defenses in your car accident case could affect your recovery, check with your personal injury attorney at Coastal Law immediately – we will help you to investigate your crash, determine liability, and identify all possible sources of recovery.
SC Personal Injury Lawyers in Myrtle Beach
The Myrtle Beach car accident attorneys at Coastal Law will help you to recover maximum compensation for your injuries whenever possible.
If you were involved in a car accident caused by another driver’s negligence, call now at (843) 488-5000 or contact us through our site to set up a free consultation and case review with a SC personal injury attorney today.