Myths About Accident Cases, Part 2

Pam: Another myth: I have the same insurance company as the other guy, I'm sure they'll treat me fairly. What do you think?

Barry: Most people have positive relationships, or have had positive experience with their own insurance company, whether it's because they like their agent or because they had some type of minor claim experience before that was handled in a satisfactory kind of way, and they think, "well, I'm also a customer of Allstate" or State Farm or American Family or whoever that insurance company is and think, "I'll have that same kind of experience this time around". And nothing can be more false, because when you're making a claim against somebody else's policy, you're really no different from somebody who's insured with somebody else altogether and you don't get treated any better, any differently, because of the fact that you also happen to have the same insurance company as the guy that you had a car accident with.

People tend to think that that's true, but you have to keep in mind that all of these insurance companies are worth hundreds of millions if not billion of dollars and they're really not going to care if you take your premium dollar someplace else, if that helps them save thousands of dollars on your claim against somebody else's policy.

Pam: What about the idea that the jury will be sympathetic to me compared to a big insurance company?

Barry: Well the thing that happens when you have to actually go ahead and file a lawsuit is the lawsuit is filed against the other person, whoever you had a ca accident with, the property owner where you fell, what have you.

Now the insurance company controls the defense, they hire the lawyers, they make the decisions about whether a settlement offer is going to be made, when it's going to be made, how much that settlement offer might be, they're in charge. But the fact that somebody else has insurance never comes out in a courtroom. So a jury is never ever going to hear that the person who's being sued has insurance. We all just sort of proceed like they don't have liability insurance, you don't have health insurance. So the idea that a jury is gong to have sympathy for you versus a big insurance company is just false because the word insurance never gets uttered in a court room in a personal injury case.

In fact, many people actually identify the defendant as being the victim in civil lawsuit and those are the people who tend to engender more sympathy that somebody who's actually been hurt.

Pam: Okay.

Barry: Strange as it seems.

Pam: Another myth you discuss in your book "Myths and Mistakes" available at the resource center at, is if you fall on someone's property, they are liable.

Barry: For some reason people tend to assume that simply because you fell on somebody else's property, they're gong to be liable for the accident, for your injuries. In fact, nothing could be further from the truth.

Slip and fall cases are actually some, of the more difficult kinds of cases to win. Just by way of example, in a simple car accident case, when a jury gets the jury instructions they're told that you have to prove three things. In a slip and fall case that number is six. It's actually that much harder to actually win a slip and fall case than, say, a car accident case or some other type of ordinary negligence case.

They're very very difficult cases to win, but for some reason people tend to believe that just because you fall on somebody else's property, they're gong to be liable for your injuries. It's just not true and when you speak to an insurance adjuster, before you get a lawyer, a lot of times they are going to be trying to elicit things in a recorded statement that are really going to undermine your ability to prove the six things that you need to prove. These are difficult cases. I happen to enjoy them just because they're complex and they're interesting. But they're difficult cases to put on and people seem to assume that they are actually fairly straight forward matters and they're not.

Pam: Okay, so lets talk about rear-end crashes. Is automatic liability applied to the rear-ending driver?

Barry: You would think that that would be true but that's also not true. There are actually legal defenses to a rear-ending accident, a sudden stop, what's called an act of God if somebody has a seizure while they're driving. Those are actual legal defenses to a rear-end accident.

Past that though, we you're filing a lawsuit involving a car accident, you're also obligated to prove that you had injuries which were cause by the accident. So when to have things like a low-speed collision, when you have photographs of the car that don't really show any damage to the car, these are things that can be contested.

I tried a case one time where the defense lawyer referred to the accident as a fender-bender without a bent fender. So those are things where the skeptical eye of the jury really comes into play. If they look at a picture of a car that doesn't show a lot of damage and you're claiming that you were injured and that you needed all kinds of medical care and had a lot of difficulties because of that, it's something that's something that's hard for them to kind of wrap their heads around and that natural inclination is also very very much fueled by the insurance company hiring a medical expert to support the idea that there weren't injuries that were caused by the accident, that the person had pre-existing conditions, or it was just poor genes, or there were some other medical issues to why these people had all this care, but their position is ultimately going to be it wasn't caused by the accident.

So you need to prove that there were injuries caused by the accident. That's something that insurance companies aren't obligated to accept as being true and a lot of times is very strongly contested in rear-end car accidents. It's really kind of their main line of defense, so to speak.

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