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Insurance Company Defenses Go to the Movies

Rows of Seats at Movie Theater
Pianko Law Group 
February 25, 2022

Normally, the up-close study of insurance company defenses feels something like this. But in this blog, we'll at least try to inject a little more life into the discussion.

Understanding and refuting insurance company defenses is at least as important as building a negligence claim. Unless a New York personal injury lawyer anticipates insurance company defenses and is ready to rebut them, victims have almost no chance of obtaining fair compensation for their serious injuries. After all, though this compensation is available, insurance companies do not give it out like candy on Halloween. Simply showing up and saying the right things gets you nothing in court.

Damages in a fall, car crash, or other personal injury case usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages could be available as well, in some extreme cases.

Assumption of the Risk

This defense often comes up in premises liability claims, such as swimming pool drownings and dog bites. Occasionally, the defense revolves around a waiver. But in most cases, the defense involves a warning sign, like "No Lifeguard on Duty" or "Beware of Dog."

Legally, the insurance company must prove, by a preponderance of the evidence (more likely than not), that the victim voluntarily assumed a known risk. A warning sign makes these elements much easier to prove, at least in most cases.

However, that's not always how it works. Consider this clip from Spongebob Squarepants. Loyal Spongebob viewers, or people who have the mentality of a 10-year-old, might recognize this scene as the tail end of a friendly game of tag which went horribly off the rails. Patrick runs through a sign that says "Danger: Cliff" and plummets into the coral garden far below.

Why does Patrick, who is normally very reserved, act so recklessly? Is he so desperate to avoid Spongebob's tag that he is willing to risk his own demise? Not exactly. Quite simply, Patrick is so stupid that he cannot read the sign.

This issue comes up in the real world quite a bit, but not because the victim is stupid. Frequently, the victim cannot read a sign, or cannot understand what it means, because of limited English proficiency, limited reading skills, or vision trouble. Other times, the landowner buries the warning on a long list of pool or house rules, so the warning is almost impossible to see.

Comparative Fault

This defense, which is also called contributory negligence, is extremely common in injury claims. This scene from The Lookout is a very good illustration of comparative fault. The unnamed Kansas farmer clearly should not have parked his/her combine in the middle of the road. At the same time, Joseph Gordon-Levitt should clearly not have been driving at night without the car's headlights on, especially since he was clearly trying to impress a girl.

On a related note, there was all matter of distracted driving going on in the vehicle in the moments leading up the wreck. But those things are the subject of another blog.

As mentioned, comparative fault not only comes up in vehicle collision claims. Different forms of this defense appear in different contexts. For example, in a dog bite claim, the insurance company often argues that the victim provoked the animal. Or, in a fall claim, lawyers argue that the victim didn't watch where s/he was going.

Attorneys basically have two chances to derail this defense, especially in New York. The insurance company has the burden of production and the burden of persuasion.

Admittedly, that sounded a little like the late, great John Housman's lecture in the Paper Chase, in the clip above. So, let's break it down a little.

The burden of production means a lawyer must convince a judge that the defense could apply. For example, a driver's excessive speed does not automatically involve the comparative fault defense. There's a big difference between speeding 5mph over the limit and traveling 20mph over the limit.

The burden of persuasion means a lawyer must persuade jurors that the defense applies. If they go along with that thought, they must divide responsibility on a percentage basis, such as 50-50, based on the evidence.

New York is one of only a few pure comparative fault states. Even if the victim was 99 percent responsible for a car wreck, fall, or other injury, the tortfeasor (negligent party) is responsible for a proportionate share of damages.

Last Clear Chance

This clip from Planes, Trains, and Automobiles is not the best illustration of the last clear chance defense. But we couldn't find a better one, and it's a damn funny scene. So there you have it.

Clearly, lovable loser Del Griffith was going the wrong way. However, the oncoming semi-trucks did almost nothing to avoid a wreck, even though they must have seen Del coming.

All drivers have a duty of care at all times. According to this duty of care, they must avoid accidents if possible. So, if Driver A has a reasonable chance to avoid hitting Driver B, perhaps by quickly changing lanes or speeds, and Driver A doesn't take advantage of that chance, Driver A could be legally responsible for the wreck.

There is a very big difference between any possible chance and the last clear chance. The reason the PT&A clip doesn't work well is that there is probably no way the semi-trucks could have avoided Del. Large trucks don't stop on a dime and they couldn't change lanes without running off the road.

Sudden Emergency

Finally, we have a clip from a cinematic classic, Tommy Boy. But before we address the clip, let's address the two elements of the sudden emergency defense, which are:

  • Reasonable reaction to
  • A sudden emergency.

This defense is quite common in jaywalking pedestrian accident claims. Frequently, insurance company lawyers claim the victim "darted out into traffic," so an accident was unavoidable.

Back to Tommy Boy. The hood fly-up satisfies the first part of this defense, as it was a completely unanticipated event. A jaywalking pedestrian, on the other hand, is much like a vehicle that stops short or a large pothole in the road. These things are everyday hazards as opposed to sudden emergencies.

Even though the hood fly-up was a sudden emergency, the defense wouldn't hold up in court if Tommy's high-priced lawyers tried to use it in court. He did not react reasonably after the hood fly-up. Instead, he drove recklessly.

Anticipating and refuting insurance company defenses is a big part of a successful injury claim. For a free consultation with an experienced personal injury attorney in New York, contact the Pianko Law Group, PLLC. Virtual, home, and hospital visits are available.

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