5 Common Insurance Company Defenses in Car Crash Cases

In a serious injury vehicle collision, emergency hospitalization bills often exceed $100,000. This figure does not include other economic damages, such as lost wages, post-injury physical therapy, and property damage. This figure also does not include noneconomic damages, like pain and suffering, emotional distress, and loss of enjoyment in life.

To avoid paying compensation for these losses, insurance company lawyers often try to use a number of legal loopholes. If successful, these loopholes either reduce the amount of compensation the victim/plaintiff receives or eliminate recovery altogether.

So, a good New York personal injury attorney should anticipate the following defenses in car crash cases, and be ready to respond to them in court.


Contributory Negligence

The most common insurance company defense shifts blame for the accident from the tortfeasor to the victim.

Many times, both drivers were at least partially at fault. For example, the tortfeasor might have made an illegal lane change, and the victim might have been speeding.

An attorney usually has two chances to derail the contributory negligence defense. First, the insurance company must convince the judge that the defense should apply. Many times, that’s not the case. To return to the above example, the victim might have been speeding one or two miles per hour above the speed limit. That’s not enough to invoke the contributory negligence defense. Second, the jury must apportion fault on a percentage basis. An attorney can make these same kinds of arguments to the jury.

New York is a pure comparative fault state. Even if the tortfeasor was only one percent responsible for the crash, the victim still receives a proportional share of damages.

At the crash scene, first responders often give one driver a ticket, so the insurance company can determine fault. But there is often a difference between fault at the scene and legal responsibility for damages. Comparative fault is a good example of this difference.

Assume Thomas Tortfeasor was speeding as he approached Vincent Victim. Just as Thomas was about to pass Vincent, Vincent changed lanes without signaling. Since both Thomas and Vincent violated traffic laws, police officers would have a hard time determining fault.

It is even more difficult to determine liability, because of the comparative fault rule. If the case went to trial, the jury would apportion fault between the two, based on the evidence.

New York is a pure comparative fault state. So, even if Vincent was 99 percent responsible for the crash, he could still receive a proportionate share of damages. In contrast, nearby Maryland is a pure contributory negligence state. There, if Vincent was even one percent responsible for the crash, he would be ineligible for compensation. So, New York has one of the most victim-friendly comparative fault laws in the country.

On a related note, New York is one of the few states which recognizes the seat belt defense, which is an offshoot of contributory negligence. In the Empire State, insurance company lawyers can introduce evidence of seat belt non-use to reduce the victim’s compensation.

However, to invoke the seat belt defense, insurance companies must do more than introduce safety statistics. They must prove that the victim was not wearing a seat belt and that failure caused t


Sudden Emergency

This defense often comes up in pedestrian accidents. If the tortfeasor faced a sudden emergency and caused a crash, the tortfeasor is not liable for damages. This defense has two prongs:

  • Reasonable reaction to
  • A sudden emergency.

Typically, the insurance company can establish the first part. But the second part is more problematic. Legally, a “sudden emergency” is a completely unexpected situation, like a hood fly-up or a sudden lightning strike. A jaywalking pedestrian is unusual, but not a “sudden emergency” in this context.


Assumption of the Risk

Ordinarily, insurance company lawyers use this defense in premises liability claims, like swimming pool drownings. But it also comes up in car crash passenger injury cases. These victims are legally responsible for their own losses if they:

  • Voluntarily assume
  • A known risk.

Once again, the first element is usually present. Most people voluntarily get into cars. But the second element is often not present. Unless the victim saw the tortfeasor drive erratically, the risk of a car crash is not a known one – it is only a theoretical risk.


Last Clear Chance

Just like there is a difference between a known risk and a theoretical risk, there is a difference between the last clear chance to avoid a crash and the last possible chance. Only the first one excuses liability.

The last clear chance defense comes up a lot in rear-end and head-on collision cases. If the victim had a clear chance to avoid the crash, perhaps by changing lanes, and did not do so, the victim is responsible for damages.

The contributory negligence defense often comes up in freeway crashes. The last clear chance defense, which is a similar doctrine, often comes up in intersection collision claims.

Assume Driver A was approaching an intersection with a green light. She was heading north, and Driver B was heading east. Driver B made a California stop at the red light (she slowed down but did not stop). As she turned right, A hit B.

If Driver A had a clear chance to avoid the crash, perhaps by changing lanes or slowing down, she is legally responsible for the crash if she fails to take advantage of the chance. That’s true even though Driver B ran a stoplight and Driver A broke no traffic laws.


Lack of Evidence

The victim/plaintiff has the burden of proof in negligence cases. This party must establish liability by a preponderance of the evidence (more likely than not).

Many times, the victim’s own testimony is sufficient on this point. But that’s not always the case. Important supplements include additional eyewitness testimony and the other car’s Event Data Recorder. A car’s EDR is something like a commercial jet’s black box.


Contact an Assertive Attorney

There are many obstacles to fair compensation in a car crash claim. For a free consultation with an experienced personal injury lawyer in New York, contact Michael J. Redenburg Esq. P.C. We routinely handle matters in Queens County and nearby jurisdictions.