When dealing with an insurance claim or lawsuit after a motor vehicle accident, the liable party’s insurance company could make use of several defenses. Whether you’re the victim or the one at fault, it is a good idea to become familiar with defenses commonly used in traffic accident cases. A Montana car accident attorney will help you become familiar with the statute pertaining to those found in Montana.
Two Categories of Defenses
There are two defense categories used by the liable party:
- Legal defenses prevent a claim based on current legislation. One of the most widely used legal defenses related to a personal injury case from a vehicle accident is the statute of limitations, which is the lawsuit-filing deadline. This sets a determined amount of time that can pass after the accident before it’s no longer possible to file a lawsuit.
- Factual defenses rely on the unique circumstances of each case. An example is failure to mitigate damages and comparative or contributory negligence.
Failure to Mitigate Damages
In most states, the injured person or plaintiff has the responsibility to mitigate his or her damages. This means that the victim must prevent further injuries by receiving and following proper care. The person must not make the injuries worse. Otherwise, the amount of compensation can be significantly reduced.
If you have filed a lawsuit, be sure to follow all medical instructions. Do not try to accelerate your recovery despite specific requests from your medical team. Be mindful and don’t engage in activities that could get in the way of healing. Being aware of your condition and limitations will insure proper recovery.
It is a good idea to keep your medical records organized and keep a journal of your healing process.
Elements of Negligence
There are plenty of cases where more than one driver is at fault for the damages. One driver may have ran a red light, while the other driver made an illegal turn. Or, perhaps one person was speeding, while the other person was texting. This presents the possibility of negligence, which has three ways of being addressed:
1. Pure Comparative Negligence
Comparative negligence states that an injured person who is partially at fault must be held partly liable for the damages the accident caused. Some states such as New York, California, and Florida allocate fault percentages by determining how liable each party should be. For instance, if two drivers were each 50 percent at fault, then each of them may receive half of their damages from the other party.
To determine comparative negligence, elements of evidence are presented that show how each party was negligent.
2. Modified Comparative Negligence
Many states practice modified comparative negligence, which is gentler to certain defendants. Under this rule, a maximum percentage of fault is established. The plaintiff cannot receive compensation for any injuries if they go above the determined percentage of fault. The most common limit is 50 or 51 percent, depending on the state. If both parties are equally at fault, then the idea is that no one should pay for damages. A car accident attorney can confirm the rules that apply to your state.
3. Contributory Negligence
Under this law, which is active in only a few states, the plaintiff cannot receive any compensation if they had any fault for causing the accident, even if it was only five percent or less. An experienced attorney with these types of cases will be able to argue the best case for the injured party.
4. Procedural Defenses
The defendant may get their case dismissed on procedural grounds such as the statute of limitations, which can vary according to the state in which the accident occurred. If the plaintiff does not file a suit within the deadline, the opportunity to receive compensation will be missed. Cases may also get dismissed if there’s a technical error, as some courts don’t allow cases to be amended.
To ensure claims get processed correctly and compensation is given to the victim, the plaintiff must ensure compliance with procedural rules. An accident attorney will know each step of the process and can ensure the claim is filed correctly.