Insurance companies typically defend against personal injury claims by seeking to prove that there are in fact no new injuries or that new injuries are actually aggravations of preexisting injuries whenever they can. Then, making this argument, they make low settlement offers. Courts have found, however, that injured persons have a right to collect damages for new injuries and aggravations of preexisting injuries.

Liability in Personal Injury Claims

With personal injury claims involving insurance companies, the injured party must prove that the insurance company is liable for the injuries. Liability is the legal responsibility for a person’s actions or failures to act. Proving liability is how a plaintiff establishes that she or he is owed money by an insurance company.

To prove liability, the plaintiff must convince a judge or jury of three things: duty of care, negligence and causation.

The injury victim must prove that the at-fault party owed them a duty of care. Courts define a duty of care as the expectation that a person behaves reasonably towards others. (For example, a driver owes a duty of care to other drivers, passengers and pedestrians.)

The plaintiff must also prove that the at-fault party acted negligently. Negligence is the lack of ordinary care. A negligent person fails to act in a way that a reasonable person would act in a similar situation. A driver is typically acting negligently, for example, if she or he drives at excessive speeds.

Finally, the plaintiff must prove that the at-fault party caused the plaintiff’s injury. Some jurisdictions call this the substantial factor test and ask, “Was the defendant’s action or failure to act a substantial factor in the plaintiff’s injury?” Other jurisdiction use the but-for test and ask, “But for the defendant’s actions, would the plaintiff have been injured?”

Prior Injuries and New Insurance Claims

It is at this stage of the plaintiff’s case that an insurance company may point to a prior injury; they may claim that despite negligent action by the at-fault party, the action cannot be proven to have caused the injury because the injury already existed.

Imagine a person with a broken arm being hit by a car while crossing the street. The driver of the car is at fault. The insurance company will claim no liability for the broken arm – after all, it was already broken.

It is very important for a plaintiff to maintain and present meticulous records of all medical treatment before and after the events leading to a personal injury claim.

 

 

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