Common Defense The Insurance Company and Other Lawyer Will Use To Pay You As Little As Possible

If you have been injured in a car accident in Georgia, you may automatically think you are entitled to compensation. This is not always true. Even if somebody else was negligent in causing the wreck that injured you, there may be a number of defenses the careless driver may raise to try to defeat your claim. Insurance companies have a lot of resources. They are not in the business of just giving away money. Their job is to pay as little as possible. If there is a potential defense they can raise, they will do it.

Common Car Accident Defenses

There are a lot of defenses available in personal injury cases, and of course, whether a particular defense is available to a defendant depends on the specific facts of the case. In car accident cases in general, there are certain defenses that we see more than others.

Some of the more common defenses include the following.

1. Wrong driver, or “It wasn’t me.”

We have had more than one case where a defendant tried to deny they were driving. This can commonly occur in hit and run cases where the information on the car is obtained by a witness or the injured party, but the driver does not stop. When police track down the owner of the vehicle, the owner claims somebody else was driving.

Whether the owner was driving or not, the liability insurance policy on the car should still provide coverage. This is because insurance follows the car. However, if the owner claims someone took their car without permission, the insurance company may try to deny coverage by relying on an exclusion for non-permissive users. If liability coverage is denied, your uninsured motorist coverage may be your only source of financial compensation for your damages.

If the driver is unknown, they are considered a John Doe. Your own uninsured motorist coverage will provide you with protection when a driver is unknown. If a lawsuit needs to be filed in a case where the driver is unknown, or at least there is an argument some unknown driver caused the wreck, then it is important to name John Doe as a defendant.

2. No duty was breached, or “If it was me, I was not negligent.”

The elements of a negligence claim—in other words, what has to be proven to show negligence—are duty, breach, and causation. Not surprisingly, people try to avoid responsibility for their actions when it comes to causing car accidents. Negligent drivers frequently deny they did anything wrong to cause a wreck. Even if they rear-ended someone and there is an eyewitness who says they were speeding or following too closely, they will still try to deny it.

We have handled a number of cases where careless drivers have made absurd arguments to avoid responsibility. Negligent drivers may blame the weather, some mystery driver, or the injured person. In one case, a tractor-trailer driver who crashed into our client tried to argue that he could not stop in time because the road was wet and he had just come up over a hill, so by the time he saw our client it was too late to stop in time. We proved him wrong and the insurance company settled for $1,375,000.

There are a number of ways to prove that a negligent driver was, in fact, negligent. These methods include:

  • Eyewitnesses
  • Accident reconstructions
  • Cell phone records
  • Video recordings from one of the vehicles or a witness
  • Statements of the driver
  • Police officer dash cam recordings (these may capture the defendant making an incriminating statement, or may capture facts to discredit the defendant by capturing the road and weather conditions or other factors)

3. Contributory or comparative negligence, or “If I was negligent, you were negligent too.”

Contributory negligence means that the injured person, the plaintiff, was negligent and that negligence contributed to his or her injuries. Under Georgia law, all people are supposed to use ordinary care to avoid potential injuries. If a person does not use ordinary care, that means they were negligent. If that negligence causes the person’s injuries, then they may be prevented from recovering damages.

Georgia law is a modified comparative negligence state. This means that an injury victim’s own negligence is not an automatic bar to recovering damages, like it would be in some states where a person being as little as 1% negligent can prevent them from collecting any damages at all. In Georgia, if the injured person’s negligence is less than 50%, the injured person can still recover damages, but their damages are reduced by their percentage of fault. For example, if a jury awards them damages of $100,000, but determines they were 30% at fault, the injured person’s verdict is reduced by 30%, so they could only collect $70,000. If the injured person’s level of fault is 50% or greater, the injured person cannot recover damages.

What determines a person’s percentage of fault? A variety of factors are crucial to this determination, and this can be a frequent source of dispute. In certain cases, there may be a dispute as to whether the injured plaintiff was negligent at all. Even when there is evidence of a plaintiff’s negligence, there is almost always a dispute on the percentage of fault. This is because there are not bright-line rules for setting the percentages of fault. It is ultimately a determination for the jury to make. In the settlement phase, many lawyers use their experience to try to predict the level of fault a jury may assign to a plaintiff who was negligent.

Comparative negligence arguments are becoming more common in Georgia car accident cases as insurance companies do whatever they can to reduce what they have to pay. We have had cases where insurance companies make ridiculous arguments about our clients being at fault. For example, in one case, our client was side-swiped on I-285 in Atlanta. The insurance company tried to say our client was 30% at fault because she did not get out of the way! We rejected their argument and ultimately got the full insurance policy limits.

Facts that commonly give rise to comparative negligence arguments in car accident cases include:

  • The claimant was speeding
  • The claimant was distracted
  • The claimant was under the influence of alcohol, drugs, or medication
  • The claimant’s car was not properly maintained (for example, the brakes did not work properly, or the brake lights did not work)
  • The claimant was fatigued
  • The claimant did not try to avoid the accident

4. Apportionment, or “If I was negligent, then some other driver was negligent too.”

Negligent drivers may try to argue that another driver was at fault. Georgia law allows defendants to apportion fault to other defendants as well as non-parties. In a car accident case where a defendant is pointing the finger at someone else, it is important to sue everyone who may be at fault. Under apportionment, the jury decides who was at fault and assigns percentages of fault based on their findings. The defendants are then responsible for paying their assigned percentage of damages. However, if fault is assigned to a non-party, the non-party cannot be made to pay damages because they did not have an opportunity to participate in the case and defend themselves.

There may be a number of arguments made to blame another driver. For example, a driver may claim that some other driver hit them first and caused them to crash into someone else. A driver may also argue that another driver cut them off and caused them to take evasive action, which led to a crash.

5. Lack of causation, or “If I was negligent, I did not hurt you.”

The lack of causation is one of the most common defenses we hear in car accident cases. In car wreck cases where liability is not in dispute, the defendant will almost always argue that they did not cause the injured person’s damages. This defense is seen in virtually every case with serious injuries, with the exception of maybe only broken bone cases. Broken bones are hard to dispute. The bone was usually not broken before the crash, and everyone knows that.

Other injuries to the spine or joints, such as the shoulders or knees, are not always as clear-cut. In cases involving herniated discs in the spine, torn rotator cuffs in the shoulder, or torn cartilage or ligaments in the knee, the insurance company will argue that the injuries were pre-existing.

To make their arguments about lack of causation, the defendants will obtain all of a plaintiff’s prior medical records in the discovery phase of a lawsuit. They will scour the records for any mention of the specific body part hurting before. They will then use this evidence to argue that the plaintiff was already injured and the wreck did not cause it. The defendants will also look for any prior injury claims, such as prior car accident claims, prior slip and falls, or prior workers’ compensation claims.

The insurance company will not give up if it is unable to find any prior injuries or reports of pain in the affected body part. It may still argue that the wreck did not cause your injuries. Defendants frequently rely on misleading findings, such as MRIs or X-rays that refer to degenerative changes, to argue that the problems were there before. Degenerative changes are simply changes that come with age. Almost everyone has them, but not everyone has problems resulting from those changes. Even in cases where a lot of degenerative changes are seen on an imaging study, such as a lot of arthritis in a joint, the person may have experienced little to no pain before an accident. Insurance companies frequently retain experts to review imaging studies and prior medical records to argue that a car accident did not cause the claimed injuries.

Even if a car accident victim has a prior condition in the same body part that is injured in a crash, they still may be able to recover damages. In Georgia, a pre-existing condition does not prevent a plaintiff from winning a car accident case. A defendant is liable for an aggravation of a pre-existing condition. So, if a person had a condition before an accident but it was not giving them problems, or it was causing problems but the accident made it worse, the injured person can still recover damages. When dealing with pre-existing conditions, it is very important that all prior injuries or medical problems be disclosed to your lawyer. The failure to disclose a pre-existing condition looks evasive. Also, your lawyer needs to know how to present your case, and whether to argue that it is a new injury or an aggravation of a prior injury. There are few things as bad for a personal injury case than a plaintiff failing to disclose a prior injury or medical problem.

6. Reasonableness of damages, or “If I was negligent and I did hurt you, I did not hurt you that bad.”

When all other arguments fail, the insurance company is likely to resort to the argument that the claimed damages are not reasonable. This argument is frequently made with regard to medical bills. Under Georgia law, medical bills can be claimed as damages but they have to be reasonable. We are seeing insurance companies argue that medical bills are unreasonable more and more. They will even use high paid experts to contest the reasonableness of the bills.

The insurance company may also argue that the injured person did not need to miss as much work as they did, so their lost wages are high. They may argue the injured party is exaggerating their damages. Or they may argue that the pain and suffering damages are not as high as what are being claimed.

Talk To A Georgia Car Accident Attorney Today

At The Champion Firm, our personal injury attorneys are experienced in handling car accident cases. We know the strategies that the insurance companies will use to try to defeat claims, and we know how to overcome the hurdles they try to put in our place. If you have been injured in a Georgia car accident, contact us today so we can start working as soon as possible on creating and implementing a strategy that will help you get the best possible result.