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Premises Liability: The Slip and Fall

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Common Insurance Company Arguments

If you have been injured in a car accident insurance companies may try to defeat or diminish the value of your claim with a laundry list of arguments that include...

Using Your Medical History Against You

The plaintiff* has a hearing or vision defect and wasn't wearing his glasses or hearing aid at the time of the accident.
The plaintiff had other physical defects such as epilepsy, headaches, sickness, etc., which impaired his driving ability, perception, and reaction time.

Using Your Perceptions/Recollections Against You

The plaintiff didn't notice the defendant until impact or immediately before impact and therefore was not paying attention.
The plaintiff's recollection of time of day, accident timing, speeds, and distances are grossly inaccurate and indicate inattentiveness or incompetence in driving which diminishes his credibility.
The plaintiff exaggerates the defendant's speed and other facts surrounding the accident which diminishes his credibility and makes him an unreliable or unbelievable witness.
The plaintiff has difficulty describing events surrounding the accident in detail.

Blaming It On The Condition of Your Vehicle

Seat belts or other safety devices were available in the vehicle but not used by the plaintiff.
There were equipment defects in the plaintiffs vehicle: the tires were bald, brakes were not working, tail lights not working, turn signals not working, etc.
The plaintiff's vehicle was not equipped with a headrest. seatbelts, a rearview mirror, or other safety devices.

Making You The Bad Guy & Blaming You For The Accident

The plaintiff had prior warning of danger within a sufficient time to avoid the accident if he were paying attention.
The plaintiff could have avoided the accident if he were not exceeding a safe speed for the road/weather conditions.
The plaintiff made an unnecessary and unexpected stop.
The plaintiff made an unsafe lane change without warning.
The plaintiff gave no stop or turn signal.
The plaintiff was backing up under circumstances and/or at a location where a reasonable person wouldn't have anticipated same or where it was difficult for defendant to see same.
The plaintiff was not at/in the intersection first.
If the plaintiff and the defendant were in the intersection at same time, the plaintiff was to the defendant's left, exceeding the speed limit, or was inattentive.
The defendant was acting as any "reasonable person" would have. He was traveling at a safe speed for conditions and therefore was not negligent. The defendants actions were not a probable cause of the accident.

Shifting The Blame to Some Other Cause

An act of God or unknown person was responsible for the accident.
The accident was "unavoidable."
There was an "emergency" that excused the defendant's negligence.

"Nobody Knows For Sure"

No independent witness was found who could corroborate the plaintiff's version of the accident.
A witness cannot be found (plaintiff, not defendant has legal duty to prove by a "preponderance of the evidence" each element of his case.)
The witnesses dispute the plaintiff's version of the facts or substantiate the defendant's version.
The physical evidence (lights. brakes. tires. etc.) was lost and it was necessary to have it examined by an expert to substantiate the plaintiff's version of the facts.

Mistakes

The investigating police officer made errors in his report or erroneous conclusions that dispute the plaintiff's version of accident.
The plaintiff did not obtain the services of an expert to substantiate the negligence of the defendant.
The police was not called to the scene (inferring that it was just a minor accident).

Claiming That You Are Not Really Injured and/or Minimizing Injuries

There was no complaint of pain at scene of accident by plaintiff.
There is nothing in the police report to indicate that the plaintiff complained of pain at the accident scene.
There were no physical signs or injury at scene of accident like cuts, bruises, etc.
The plaintiff did not request an ambulance.
The plaintiff did not go to the emergency room on the day of the accident or in the day following the accident.
The plaintiff told the defendant or other people at the scene that he felt "Ok."
The plaintiff made a statement to the insurance company that he was not injured in the accident.
The plaintiff received no treatment for several days following the accident.
There is no medical opinion substantiating medical causation between the accident and the plaintiff's physical or subjective complaints.
Shortly after the accident, the plaintiff's physical/health condition returned to "normal" i.e. what it was prior to the accident
The plaintiff's complaints to his doctor were minimal.
According to medical records the plaintiff exaggerates complaints related to the accident.
According to medical records the plaintiff's complaints to his doctor were bizarre, exaggerated, and lengthy.
According to medical records the plaintiff's complaints to one doctor differ from his complaints to other doctor(s).
The plaintiff had full range of motion at the medical examination.
The plaintiff was observed moving normally and without pain.
The plaintiff's family doctor's opinion is that the injuries are minimal. The doctor did not prescribe physical therapy or any other treatment.
The plaintiff did not see his regular doctor again.
The plaintiff's injuries are totally "subjective". i.e., no indication of injury from x-rays, orthopedic tests or observation.
The plaintiff received minimal treatment for a minimal time period after the accident.
The plaintiff saw a chiropractor after the accident and not a "real" doctor (i.e., M.D.)
The plaintiff only received chiropractic care and massage after the accident.
The plaintiff has a psychological condition instead of an injury.
The plaintiff is malingering, or the plaintiff's subjective complaints are not supported by objective findings of injury.
The plaintiff was examined by a doctor recommended by the insurance company ("independent" medical exam) soon after the accident and was found to be uninjured and not in need of any treatment.
The plaintiff had a chronic injury or condition as documented in the past medical records or she has unrelated medical problems as such as arthritis or congenital.

Minimizing the Severity of the Accident

• The property to damage to either or both vehicles involved was minimal.
• The plaintiff's vehicle was equipped with shock-absorbing bumpers, headrests, seat belts, which made impact injuries impossible or improbable.
• No other persons involved in accident had injuries.
• The defendant claims he was only going 5 mph or less.
• The damage repair estimate shows only $1,000 of damage to plaintiff's vehicle.
• The plaintiff's airbags never deployed so the forces had to be minor.
• The defendant's airbags never deployed so the forces had to be minor.

Using Your Medical History Against You

• The plaintiff made errors in recalling his medical and/or employment history to the insurance company which can be' discovered" by defense during litigation.
• The plaintiff had prior complaints of pain to the same area of his body before the accident.
• The plaintiff received medical treatment to the same areas of his body before the accident.
• The plaintiff had seen a chiropractor or massage therapist before the accident.
• The plaintiff had a subsequent injury, which was the cause of continual problems instead of the accident in question.
• The plaintiff had no complaint of pain at the physical examination.
• The plaintiff received mental health counseling or therapy before the accident so perhaps his complaints following the accident are psycho-somatic.

Minimizing Financial Impact Caused by Your Injuries

• The plaintiff's doctor did not recommend time off of work yet plaintiff took time off work.
• No doctor has stated that the plaintiff would lose work time in the future.
• The plaintiff had a poor attendance record at work prior to accident.
• The plaintiff would have been terminated, on strike, or laid-off even without accident.
• The plaintiff had no job at the time of the accident and can't substantiate that he was applying at various places.
• The plaintiff's earnings (W-2 and tax records) indicate a smaller earnings history than he has claimed.
• The plaintiff was paid in cash for prior employment and can't document his past earnings and/or has no tax returns.
• The plaintiff's employer has no official record (i.e., W-2) or other means to substantiate plaintiff's employment.

Pulling Out all The Stops - Other Common Defenses

• The cost of treatment was excessive and the period during which plaintiff was treated was excessive in light of the "standard" or "customary" charge for such services.
• The injuries should have healed within 3-6 mos., so any treatment after that is excessive or unnecessary.
• The plaintiff went to work contrary to his doctor's advice and thereby aggravated his injury and/or caused prolonged period of disability and/or treatment.
• The plaintiff's doctor no longer in area or otherwise unavailable.
• The plaintiff allowed the "Statute of Limitations" period to expire, thereby forfeiting possibility of recovering anything for his claim.
• The plaintiff was partially at fault and should recover less under the rule of "Comparative Fault."
• Plaintiff has history of filing lawsuits for the purpose of collecting compensation.
• The plaintiff has a history of mental illness or emotional problems making him unreliable.

There are dozens of other arguments that insurance companies commonly use to avoid paying a fair and reasonable settlement for your injuries. It is the insurance adjustor's job to find as many of these defenses and arguments as possible for the limited purposed of defeating or minimizing your claim. He will question you very carefully. It all starts when the adjustor wants to "take your statement". Once you give a statement, and provide any information that might support one or more of these "arguments" it can be very, very difficult to later change the insurance company's mind - even if their argument is totally untrue! Information you give to the insurance company early on in the claim can cause irreparable damage later on. Remember that it is the insurance adjustor's job to find as many of these defenses and arguments as possible for the limited purposed of defeating or minimizing your claim. He will question you very carefully. Therefore, be very careful when speaking to the insurance adjustor!

*Plaintiff - also known as the claimant, is the party who initiates a lawsuit (also known as a cause of action) in court. In personal injury cases the plaintiff is the injured party

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Seattle personal injury attorney Christopher M. Davis is the managing partner of Davis Law Group. He brings over 15 years of practical yet innovative experience to personal injury cases. He practices law in Seattle, WA. You can learn more about Mr. Davis at http://www.InjuryTrialLawyer.com. Click here to get information on your personal injury or car accident claim.

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