If you or someone that you love was recently injured due to the thoughtless or careless acts of another person, whether intentional or unintentional, you or your loved one may be entitled to financial compensation for any injuries, emotional distress, vehicle damage, and other losses. Accidents caused by negligence as well as intentional misconduct cause injury in a wide range of incidents, including:
- Motor vehicle accidents
- Car crashes
- Motorcycle accidents
- Pedestrian accidents
- Trucking accidents
- Bicycle accidents
- Bus accidents
- Train accidents
If you are injured in any of these types of incidents or by other unsafe conduct of a third party, it is likely that you will be forced to deal with an insurance company. Insurance company adjusters may seem cooperative, but the insurance industry did not become a billion dollar a year segment of the economy by maximizing the compensation paid on claims. Insurance companies often rely on a variety of defenses to avoid paying claims or reducing any amount paid.
Some of these common defenses include the following:
Statute of Limitations: This is a very important defense because failure to comply with this timing requirement is almost always a complete defense to personal injury claims. Generally, a car accident claim must be filed within two years of the collision. The statute of limitations (SOL) period varies depending on the nature of your case. The calculation of the SOL can be complicated because sometimes certain types of injuries may not be immediately discoverable (e.g. asbestos exposure cases), the date the time limit commences may be an issue, and the SOL may be tolled or suspended for a period. If you fail to comply with the SOL, you will almost always lose your right to have your case heard in court and be compensated for your injuries. There is no “hardship” exception to the SOL so even if a party’s liability for causing catastrophic injuries is beyond dispute, you will be barred from pursuing your claim.
Comparative Negligence: This defense is based on an accident victim’s role in contributing to his or her own injuries. While defendants in personal injury cases are expected to take reasonable care to avoid foreseeable injury to others, injury victims are expected to exercise the same level of care for their own safety. While all states impose a duty of care on injury victims to act prudently to avoid being injured, states vary on how this obligation is applied. California is a “pure comparative negligence” jurisdiction. This means that an accident victim can recover for injuries from an accident victim regardless of the third party’s degree of fault. Even if the accident victim is considered 95 percent at-fault, the injury victim can still seek compensation, but any award will be reduced by the plaintiff’s percentage of fault. If the plaintiff’s damages amount to $100,000, the plaintiff’s recovery would be reduced to $5,000.
Lack of Compliance with Governmental Claims Act: Anytime an act or omission of a public body or entity (at the state, county or local level) contributes to an accident, there will be special rules, deadlines or procedures that must be complied with under the California Tort Claims Act. This statute essentially functions as a partial waiver of the sovereign immunity granted to government entities. A lawsuit cannot be pursued against a government entity unless a proper claim is filed with the government entity within six months of one’s injuries.
Pre-Existing Conditions: Many times insurance companies will contend that the person who was injured was not injured by the accident but by some prior event. However, the exacerbation of a pre-existing injury may be a legitimate basis for an injury claim.
Risk Assumption: Sometimes an injury victim may be considered to have assumed the risk of injury. This defense is typically relevant in cases of high-risk activities where the risk is readily apparent and likely to be fully appreciated by the injury victim. Many businesses that permit people to engage in this type of dangerous activity (e.g. skydiving) require a waiver of liability to be signed. Even if you sign such a waiver, this may not preclude a successful personal injury claim so you should seek prompt legal advice.
Defenses Based on Causation: Many times it can be hard to prove that a particular act or omission was the cause of a victim’s injuries. One of the prototypical examples is a failure to diagnose cancer case. It can be difficult to establish whether a person died prematurely because of the natural course of the underlying illness or the physician’s failure to properly diagnose the disease when the opportunity presented itself.
These are just a handful of common defense strategies lawyers for insurance companies in San Francisco may employ to avoid or reduce the amount of compensation that must be paid on personal injury claims. Our experienced San Francisco personal injury attorneys have the experience and expertise to develop effective strategies for addressing these defenses.
Contact Us
If you were injured because of someone else’s negligence, and if you need a San Francisco personal injury attorney, contact The Law Office of Ian Zimmerman for your free initial consultation. We are open 9:00 a.m. to 6:00 p.m., speak Cantonese and Mandarin Chinese, and are available for weekend, evening, home and hospital meetings and visits. We also offer free initial consultations and work exclusively on a contingency fee basis, so that you pay nothing if we don’t win your case.
Call (800) 266-5000 to speak with an experienced California personal injury attorney about your case today.