Insurance Company Defenses as Seen on TV
August 30th, 2019
There is absolutely nothing amusing about a serious injury. These victims must deal with excessive medical bills, unimaginable pain and suffering, and other such issues. So, attorneys who handle car accidents work hard to resolve these claims as favorably, and as quickly, as possible.
But attorneys cannot help but laugh at some of the ways insurance companies bend over backwards to reduce or deny liability, even when this issue is very clear. Besides, some people say that laughter is the best medicine. So, in that spirit, here we go.
This legal doctrine often comes up in pedestrian accidents, especially ones that happen outside marked crosswalks. In court documents, insurance company lawyers often claim that the victim “darted out into traffic” and so the tortfeasor (negligent driver) could not avoid the crash. This doctrine, which is called sudden emergency, has two basic prongs:
- Sudden emergency, and
- Reasonable reaction.
A clip from 1995’s Tommy Boy, with dynamic duo Chris Farley and David Spade, may shed some light on the sudden emergency defense.
As our two auto parts salesmen are emoting to The Carpenters, the hood suddenly flies up. In the next scene, we learn that the hood fly-up was probably Tommy’s fault. But fault is not relevant in the sudden emergency defense.
The hood fly-up itself, however, is highly relevant. A hood fly-up is like a tire blowout, a lightning strike, or another completely unexpected situation. Things like these are sudden emergencies in Texas.
Often, insurance companies try to expand the sudden emergency defense to include different things, like the aforementioned jaywalking pedestrians. But even if the victim did “dart out into traffic,” this situation is usually not a sudden emergency in this context. Instead, it’s more like a stopped-short car, large pothole, construction zone, or stalled car. Drivers should be able to deal with these everyday obstacles. That’s part of the duty of reasonable care.
The clip also illustrates the second prong of this defense. Tommy did not react reasonably. Instead, he drove recklessly. So, even though the first part of the defense applies, Tommy would be unable to use it in court.
Typically, the only reasonable reaction to any car crash is pulling over to the right, rendering first aid if needed, and waiting for emergency responders.
Last Clear Chance
This loophole often applies in rear-end and head-on crashes, like the one in 1987’s Planes, Trains, and Automobiles.
Apropos of nothing, these movies are rather bittersweet today. Chris Farley is dead, as are John Candy and PT&A director John Hughes.
Back to the blog. Basically, the last clear chance defense states that victims must do everything possible to avoid a crash. So, if Driver A crosses the center line. Driver B cannot simply let the crash happen. She must avoid Driver A, if possible.
So, even though lovable loser Dell Griffith runs head-on into two semi trucks because he’s going the wrong way, the truck drivers may be legally responsible for the crash. They must do more than honk, if possible.
However, there is a difference between the last clear chance and any possible chance. In this clip, the road was wet, so fast moves are unsafe. Additionally, two large trucks travelling side by side do not allow much room for maneuvers. That alignment may be negligence, but that’s the subject of another blog.
Assumption of the Risk
The final installment usually pertains to premises liability matters, like a slip-and-fall or a dog bite. Legally, this doctrine has two prongs:
- Voluntary assumption of
- A known risk.
This clip from Patrick Smartpants illustrates this defense. The “Danger Cliff” sign is just like a “Beware of Dog” or other warning sign. Why someone would put such a sign on the precipice of a cliff makes no sense. It would probably be better to put it further back so as to give people more warning.
At any rate, Patrick clearly voluntarily assumed the risk. Loyal SpongeBob viewers may remember that Patrick was in this position after a friendly game of tag went horribly awry. However, Patrick could not read the sign, so he probably could not understand the sign either. Therefore, he did not assume a known risk.
This wrinkle comes up a lot in child victim cases. Many small children cannot read signs or understand what the words mean. The same thing applies to people with limited English proficiency.
Contact an Experienced Attorney
Insurance companies use legal loopholes to try and reduce compensation. If you’re in an accident that was not your fault and an insurance company is tossing these kind of avoidance tactics at you, give us a call to determine whether the defense rally applies to your case. After all, the joke might really be on them!
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization since 2005. He has earned recognition as a Super Lawyer by Thompson Reuters in 2017-2019, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give educational talks and media interviews regarding personal injury law issues..