Updated August 22, 2019 | By Wilson Kehoe Winingham staff
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.
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 they are 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 they drive 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: “Was the defendant’s action or failure to act a substantial factor in the plaintiff’s injury?” Other jurisdictions use the but-for test: “But for the defendant’s actions, would the plaintiff have been injured?”
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 crucial for a plaintiff to maintain and present meticulous records of all medical treatment before and after the events leading to a personal injury claim.
If you are struggling to receive compensation from an insurance company, contact the Indianapolis Insurance Attorneys of Wilson Kehoe Winingham. The lawyers at WKW can help you get the compensation you deserve. Call 317.920.6400 or fill out an online contact form for a free, no-obligation case evaluation.
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