5 Common Defenses to Personal Injury Claims

By Peter DePaolis

You suffered a serious injury, and now you are exercising your right to collect compensation. You have hired an attorney, and you have the evidence proving that the other party was negligent. Yet, the other party is not negotiating. Instead, they are using a defense strategy to lower your settlement or possibly have the case dismissed in court.

In high-value settlements, it is common to see the insurance company or defendant mount a tangible defense strategy against your claim. They do this in hopes that they can have the case dismissed or the settlement lowered enough to preserve profit margins.

Most personal injury cases are not long-drawn-out processes. In fact, many settle out of court. However, if your claim involves an insurance company fighting back, they are most likely using one of these five common defenses.

What are 5 Defenses to Personal Injury Claims Defense Attorneys Use the Most?

While there are various defense strategies out there, these five are more commonly seen in civil court.

Contributory Negligence

The most common defense used against a personal injury claim is contributory negligence. The defendant will do their best to put part of the blame on the plaintiff. In this case, the plaintiff is being blamed for all or most of the injuries.

For example, a plaintiff is injured in a car accident. The defendant rear-ended the vehicle, but the plaintiff did not wear a seatbelt. Some of the injuries would have been avoided if the plaintiff wore the seatbelt; therefore, the defense will argue against the injuries saying the plaintiff did not prevent injuries.

DC, Maryland, and Virginia are all contributory negligence jurisdictions – meaning that if a Plaintiff is found to share any amount of the fault for his or her accident, the Plaintiff is barred from recovery from the Defendant; however, the District of Columbia applies comparative fault to crashes involving pedestrians and bicyclists.

The Assumption of Risk

If the plaintiff assumes all or part of the risk of an obviously dangerous activity, the defendant will try to claim that the plaintiff should have known about the danger of injury and cannot recover damages.

Pre-Existing Injuries

If you have ever had an accident or injury in the past, you might find that the insurance company and defense attorneys work hard to use that against you. They may say that you are filing for compensation based on past injuries and not the current accident. Luckily, your attorney can defend you against these unfair accusations by proving that the new injuries are not related, or that past injury was aggravated.

Release of Liability Waiver

If you sign a release of liability waiver, you may forfeit your right to seek compensation. However, these liability waivers do not permanently bar people from filing a suit. If the defendant was grossly negligent or purposely caused the injury or accident, the court may ignore the liability waiver.

The Statute of Limitations

The statute of limitations is the legal timeframe you have to file your claim. If you pass this restriction, you can no longer file a claim or seek compensation. For most states and civil claims, the time is two years.

Have an Advocate by Your Side

After a serious injury, you should not have to worry about fighting defense strategies. Instead, talk to an attorney and have an advocate protect your rights.

Speak with an injury attorney from Koonz McKenney Johnson & DePaolis LLP today regarding your injury. We have three office locations conveniently located on the East Coast. Schedule your free case evaluation with us today.

About the Author
Peter DePaolis joined the firm in 1980 and has since represented a large number of individuals involved in automobile collisions, truck accidents, bus crashes, defective products, and medical malpractice cases. A significant portion of Mr. DePaolis’ practice is devoted to working on behalf of people suffering from asbestosis, mesothelioma, and other asbestos-related cancers. He has led his firm’s fight against the asbestos industry and has recovered over $30 million in damages for asbestos victims and their families.