For injured victims and their loved ones seeking justice after a catastrophic accident in Illinois or Indiana, they must expect to support every detail of their damage claims against challenges by the wrongdoer.
Personal injury claims brought by accident victims and their loved ones first require sufficient proof of legal liability for those parties who caused the harm. More than one third party may be at fault for what happened. See, Are There Civil Claims for Damages Against Third-Parties for Your Work Accident?
Once accident liability is established, the case is far from over. The defense team will simply turn its focus upon challenging the victim’s damage claims and their calculations. It is important that injured victims understand how intense and complicated this stage of their fight can be.
The insurance company investigators and defense attorneys have extensive experience and developed strategies to try and limit how much they have to pay the victim, regardless of being unable to escape being held financially liable for the consequences of their client’s actions (or inactions). Even though fault is admitted, this does not mean that they will not contest every element and item of the damage claims.
- For more on the various types of damages that are available under the state laws of Illinois and Indiana for those hurt in an accident (independent of any workers’ compensation benefits), read 10 Types of Injury Damages That May Be Awarded to Accident Victims.
Defense Arguments Against Damage Claims
Some of the most common defense arguments against claims for damages in a personal injury matter, from work accidents to semi-truck crashes to motor vehicle collisions, are the following:
1. Failure to Mitigate
After someone is hurt in an accident, certain legal duties are applied to them that include being reasonable in dealing with the aftermath. Victims, for instance, will be required under the law to act like a reasonable and prudent person in their healing process.
Their activities will be scrutinized by the defense, where arguments that the injured victim “failed to mitigate” their damages will be considered.
For example, an injured victim who delayed in getting medical care because they could “tough it out,” and as a result, required more extensive care will be challenged as acting unreasonably or imprudently. That increased expense from the greater medical treatment needs will be argued as something the defendant should not be required to pay.
2. Exaggerating or Malingering Victim
Damage claims in a personal injury matter that are not considered in workers’ compensation benefits include “non-economic damages” such as emotional distress; loss of a normal life; loss of enjoyment of life; and pain and suffering.
The total amounts attributed to “non-economic damages” can be very high when there has been a life-altering, horrific accident. Victims must expect a vigorous fight by the defense here, where every dollar will be scrutinized and challenged.
One common defense to these damages will be that the victim is exaggerating things, or that the accident victim is outright lying about them (“malingering”).
Challenges here will be detailed, and often emotionally charged. Injured victims should expect defense investigators to be combing through their social media accounts, looking for anything that can be used to argue that the non-economic damage claims should be lowered. They may have private investigators surveilling the victim’s home, too (especially if the claim involves a large amount of money).
See, Can an Insurance Company Use Your Social Media Against You After an Accident? Yes.
3. Speculative Damages
After a severe injury in an accident, the injured victim will likely need medical care and treatment for a long time. Some injuries are so significant that the needs may be lifelong. Alongside these types of widespread or permanent damage, victims will usually have claims for lost earning capacity, too.
Both types of damages, long term medical needs and lost earning capacity, by definition involve forecasting. Experts will be needed by the accident victim to calculate what these future needs will be for years to come, in today’s dollars.
Legally, the expert will need to provide calculations to a “reasonable probability,” such as a “reasonable medical probability” that the victim will need a series of surgeries over the course of their lives due to the accident injury (think spinal cord damage, or internal organ trauma). Economic experts will likewise provide their opinions on the prevent value dollar amount needed to cover the victim’s lost earning capacity, to a “reasonable economic probability.”
Defense arguments will fight against these forecasts. They will have their own team of experts (who they may have worked with several times in the past) to argue that these damage calculations are inflated, wrong, or otherwise speculative.
4. Inflated Medical Bills and Cost of Care
Every dollar of an injury damage claim must be documented with admissible evidence by the victim. These will include lots and lots of medical bills and health care invoices. Every single pill will be included. Every diagnostic test, every treatment, every day spent in a hospital, clinic, or rehab center will have each dollar and penny tabulated with corresponding paperwork as part of the injury damage claims.
The defense will study every item here. Every single amount will be considered, and arguments should be expected that they are too high. That these damage claims involve medical invoicing that is inflated and exceeds the reasonable cost of care in that locality. There may also be arguments that some tests or treatments were unnecessary and provided only in the pursuit of profit.
Experts in the Fight for Damage Claims: Help for the Injured Victim
For accident victims and their loved ones, these battles over the damage amounts in their personal injury claims must be expected. Experienced legal advocates will not be surprised by these defense challenges and they will help the injured victim and their loved ones deal with the frustration, anger, and hurt that comes with these oftentimes disrespectful suggestions.
Accident victims often prepare in advance for defense arguments against their damage claims and calculations by having the help of specific experts in preparing and presenting their demands. These include:
- Independent medical examiners, that provide formal opinions that their injuries are continuing, that they are as severe and permanent as determined by the medical providers, etc.
- Forensic economists may provide formal expert opinions that the demands of lost earning capacity or lost future earnings, etc. are accurate when taking into consideration things like inflation, interest rates, changing tax rates, etc.
- Medical billing experts can also grade the papers of all the health care providers involved in the treatment of the injured victim, and confirm that no one been overcharging, or otherwise inflating the medical expenses and care needs of the accident victim.
Winning the Defense Arguments Against Accident Damage Claims
For those suffering seriously after being hurt in an industrial work injury; motor vehicle accident; truck crash, etc., where their harm was caused by one or more third parties, they not only have (1) the legal task of proving up the liability of these wrongdoers under state law, but they have (2) the responsibility of proving up every single dollar and cent of the damages they have (and will) endure as a result.
The liability portion of their case can be overwhelming. The injured victim (with their team) has to find admissible evidence to establish the parties who have the duty to pay monetary damages resulting from the incident they have caused. Documents, witness statements, analysis by accident reconstruction experts: it is a massive undertaking.
And still, when it is done, the case continues. The injured victim also has to prove up each single type of damage due under the law as well as each element of that damage in monetary totals. And this is a hard-fought matter, too. Defense teams (investigators, paid experts, defense lawyers) are well-prepared to challenge every single nickel and dime, especially when high damage amounts are involved.
Accident victims are wise to understand how intense the scrutiny will be over their monetary damage demands and how vital having experienced legal advocates and knowledgeable damage experts can be to their case. Even if the party is obviously at fault, and admits to being responsible, doesn’t mean they will not aggressively try and keep the amount they are legally required to pay in damages as low as possible.
For more, read:
- How a Car Accident Lawyer Helps Victims in Multi-Vehicle Crashes Caused by Snow and Ice
- Semi-Truck Crash Evidence: Spoilation Letters and Things Not Covered by FMCSA Retention Deadlines, The Need to Act Fast
- Why a Lawyer who is a Trial Attorney Is Important for Accident Victims in Personal Injury Cases
- Bad Faith: When an Accident Victim is Victimized a Second Time by the Insurance Company.
Damage calculations alongside the types of damages claimed by the accident victim will be challenged by those with legal liability for the harm suffered by the victim and their loved ones. It can be shocking to find how disrespectful and antagonistic these total payout arguments can be. Please be careful out there!
