It is very important to have an aggressive attorney in a car crash case, even if the facts seem relatively straightforward. Having the right lawyer represent you means you will have a vested partner who is committed to winning maximum compensation for you. You can be sure that the insurance company has attorneys who are committed to minimum compensation for victims, and they fight hard to protect the insurance company’s profits. So contact a car accident lawyer Atlanta GA trusts for a consultation.
To achieve their goal, many insurance company lawyers rely on several legal defenses.
Insurance company lawyers often try to shift blame for the car accident to the victim. For example, the tortfeasor (negligent driver) may have been speeding but the insurance defense lawyers will try argue that the victim should have seen the speeding driver and was therefore somehow partially responsible for the accident.
In such cases, the insurance company must first convince the judge that there may have been contributory negligence. That’s not always the case, because for example, not wearing a seatbelt is not considered contributory negligence in many states. But if the judge finds for the insurance company on this issue, the jury must divide fault on a percentage basis.
Most states are modified comparative fault jurisdictions with either a 50 or 51 percent threshold. For the victim to collect a proportional share of damages, the tortfeasor must be at least 50 or 51 percent at fault. That means is that if a verdict is for $100,000 and the jury says that the injured plaintiff is also responsible for the accident, let’s say by 25%, then he would be able to recover $75,000 (75% of the awarded verdict amount.) A few states are either pure comparative fault jurisdictions (victim/plaintiffs are entitled to proportional damages even if they are 99 percent at fault) or pure contributory negligence jurisdictions (victim/plaintiffs are entitled to nothing if they are even 1 percent at fault).
In some cases, the tortfeasor is completely excused from liability, and the Act of God defense is one such situation. This rule has the following elements:
- Act of God: Lightning striking is an example, but a jaywalking pedestrian, stalled car, large pothole, and other such common hazards do not constitute sudden emergencies.
- Reasonable Reaction: After the sudden emergency, the tortfeasor must react reasonably, usually by slowing down, pulling over to the right, and stopping.
Assumption of the Risk
When a passenger is injured, the insurance company often argues that the victim should have known about the danger and therefore should never have gotten in the car. The defense applies if the victim:
- Voluntarily assumed
- A known risk.
The first prong is often present, but the second prong is usually absent. There is a big difference between a theoretical risk and a known risk. Getting into a car with an impaired driver is a theoretical risk, because many impaired drivers do not cause car crashes. For the risk to be a known one, the victim must know, or should have known, that the driver had been drinking.
A good attorney is ready to refute these and other defenses, so reach out to an experienced lawyer today.
Thank you to our friends and contributors at Butler Tobin for their insight on this subject.