Remember, insurance companies and their lawyers are “skilled counter punchers” when it comes to negotiating your personal injury case. Their job is to throw as much “mud up on a wall” regarding your injury to see what might stick if your case goes all the way to a jury trial. Here are some of the top defenses I have seen insurers use in their arsenal to deflate the value of your personal injury claim:
Gaps in medical care or missed medical appointments in the middle of your treatment
One of the biggest mistakes people sometimes make is not seeking prompt medical attention or obtaining consistent medical care after an injury-producing accident. Your health must be a priority when you are injured in an accident. Failing to seek medical care can be harmful to your health and prevent your injuries from healing properly. If that were not enough, insurance companies and their defense lawyers are well trained to look for delays in medical care to either deny your claim or minimize your settlement value. Why do they do this? Because they have a better chance of convincing a jury that because there was a delay in medical treatment, you either were not that injured or there was something else besides the accident that caused your injuries. You see, juries want an injured person to “turn heaven and earth” to seek medical care because that is what a good defense lawyer will tell them at trial. Insurance companies know your chances of losing that argument diminish the longer you wait to obtain prompt and consistent medical care. Do yourself and your family a favor, seek medical care as soon as possible, and follow your doctor’s instructions. Remember, this is not the time to be stoic about your injuries, since most injuries cannot heal properly without good medical attention;
Previous/Subsequent Injury or Medical Condition Defense
The insurance company will blame part or all of your current medical symptoms on past or subsequent injuries or medical conditions. It is extremely important to have detailed medical records to explain any apportionment of past or subsequent medical issues. In law school, I was taught what is called the “egg shell plaintiff ” theory, which says “you take your plaintiff as you find him or her.” This means if you had a prior medical condition that was made worse by an accident, the person responsible for the accident takes on the responsibility of making you worse. However, in order to prove this, you must have your doctors detail any and all aggravation or exacerbations of your previous medical condition(s). An experienced injury attorney can help with this important medical documentation;
Finding contradictory statements you made or hidden medical ailments you did not previously disclose
It is extremely important to not give any statements to the insurance company before consulting with an experienced injury attorney. We briefly spoke about not every injury case needing a lawyer. But before you go without counsel, make sure you take advantage of a free legal consultation because the insurance company will take advantage of you, especially if you are not represented by a lawyer. If you have retained counsel, please make sure you disclose every prior medical condition in order to properly present your injury case for settlement;
The Low Property Damage Defense
This is often used in car accidents that contain property damage generally under $1,500 or where photographs of your vehicle show little visible damages. Therefore, it is important to obtain the photographs and repair bill of the other vehicle and to ask whether the at-fault party or his or her passengers were also injured in the accident. Sometimes insurance companies use low property damage to deny a bodily injury claim, alleging “no causation of injury due to low bio-mechanical forces.” It is also important to note if you sustained any aggravation of a prior medical condition to help show why you were injured from what would be considered a low-impact accident. Any evidence to help establish why you sustained injuries in a low-impact case is crucial and should be presented to the insurance company as soon as possible in order to remove it from the hands of a claims adjuster who only handles what the insurance company considers low-impact cases. Some insurance companies call these bodily injury claims Minor Impact Soft Tissue or MIST cases;
Over-treatment in your medical care or your medical care was too expensive
These defenses seem to go hand-in-hand. The insurance company will usually try to negotiate down your medical bills in order to pay out less in pain and suffering damages to which you are entitled. Remember, the frequency, duration and intensity of your medical care needs to be supported by the medical findings. For example, you really cannot treat with a chiropractor or physical therapist beyond a certain timeframe without objective findings of medical evidence to support further treatment. When you arm your claim with the proper medical documentation, it makes it easier for your lawyer to navigate this defense position. This is yet another reason to hire legal counsel experienced in personal injury law to represent you in your bodily injury case;
Your credibility as a witness for yourself in explaining your injuries can sometimes be open to attack
Please see the third bullet point in this chapter, as they are related. The insurance company wants to see how you come across as a witness for yourself at the time of trial. It could be how you present yourself, whether or not you are likable, or whether or not you have had some other issues in your past that would be relevant to your injury case now. Another example of the insurance company attacking your credibility is seeing if you have had numerous lawsuits. This is called the “vexatious litigant.” These types of details about you will be used by the insurance company or their defense lawyers to try and minimize your injury claim.
If my California Personal Injury case goes to a jury trial, how many jury members must be on my side in order to win my case?
In California, we have a 12 member jury for both civil and criminal cases. Since a California personal injury claim is considered a civil remedy, only a majority (9 of the 12 jury members) of jury members must agree with you and your claims in order to win.
(As an aside, in a California criminal trial, 12 out of 12 jury members must agree).
Jury Burden in California | The Difference between Injury and Criminal Cases
The difference between an injury and criminal case is most noticeable when they go to an actual jury trial because the burdens of proof differ - that is, what the jury has to decide in terms of liability or fault in a civil case, and what the jury has to decide in terms of guilt in a criminal case.
Jury Duty in California | Why Every American Should Be Proud
San Diego personal injury lawyer Mark C. Blane explains jury duty in California, and why every American should be proud. Being called upon as a juror is a high calling, one that former and esteemed U.S. president Abraham Lincoln once called the "highest calling of a U.S. Citizen." The jury system in the U.S. remains one of the most unique systems of justice in the entire world!
San Diego Personal Injury Attorney, Call Now To Speak With Us
Mark C. Blane is a San Diego Personal Injury Attorney, and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Firm dedicated to representing families of people injured in personal injury accidents including car accidents, slip and falls, dog bites, product defects, and the like. If you or a loved one has been killed or injured in an accident in San Diego, or Southern California, due to the negligence of another, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95. However, it is free to all California residents, or those injured in a California accident.