There is a wide array of defenses we see in motor vehicle collision cases. Some of them can create significant roadblocks to a fair resolution, while others have little merit and should be disposed of quickly. This article addresses some of the more common issues we face and ways to deal effectively with those defenses.
When the damage to your client’s motor vehicle is moderate or minimal, the adjuster or defense attorney will make that a central issue in their defense. “MIST” stands for minimum impact, soft tissue cases and many of the major insurance companies instituted specific MIST defenses 20 years ago. Regardless of the medical evidence, many adjusters will significantly reduce their valuation of the claim because of minimal property damage.
While this defense is not grounded in solid medical science, the defense is often effective because it appeals to the prejudices of the juries.[i] Over the last two decades, we have seen a trend of defense verdicts in even in car accident cases where liability wasn’t a major issue. There has also been a nationwide trend towards smaller jury verdicts in tort filings, with one comprehensive Justice Department survey showing 63% drop in median final jury awards from $64,000 to $24,000 from 1992 to 2005.[ii] A side note to that study was a separate finding that “plaintiffs prevailed to a greater extent in tort trials heard by judges than juries. Judges found in favor of plaintiffs in nearly two-thirds of tort trials, while juries ruled for plaintiffs in about half of tort trials.”[iii]
When CNN published results from an 18-month study in 2007, detailing the hardball tactics insurance companies employ in moderate impact soft tissue cases, the response from the industry was telling. Robert Hartwig, then president of the Insurance Information Institute claimed “those strategies were employed to fight fraud and said lawyers were upset because the gravy train is over.” This gets to the root of the problem. The defense would tell you that MIST defense tactics are simply common-sense arguments; no one could have been hurt in a wreck that only caused minimal damage to the vehicle. But the heart of the defense is really the implication that either you or your client is embellishing or lying, or even that the health care provider is lying, all to effectuate some type of car wreck scam.
While there is no specific formula to combat this defense, I would offer a few tips that I believe will help you overcome this problem
- Screen your clients thoroughly at the beginning of each case. This involves talking with them and getting a feel for who they are and how they communicate. Listen to how they describe the collision and how they describe the injuries and their symptoms. You need to be confident they are telling the truth so you can vigorously represent them. Ask about prior injuries, work history and prior claims. Help them have reasonable expectations and understand the need to neither ‘over-treat’ nor ‘under-treat.’
- Get pictures of both vehicles. This is most important in rear end collisions. Crumple zones are structural features designed to absorb energy by controlled deformation and are most commonly found in the front part of the vehicle. The rear bumpers are designed to absorb impact and prevent property damage. This means that while your clients rear bumper may show only minimal damage, the defendants front end may show more significant damage.
- Send preservation letters. You may want to request access to their event recorder, although you will have to decide if it is cost effective to hire an expert to download this data. You may want to preserve other data as well, such as smart phone records, including calls, texts and data usage. Put the defendant and his insurance company on notice that you want pictures of their vehicle or the vehicle preserved until photos are obtained.
- Monitor your client’s medical treatment. This also requires you to get some basic familiarity with the common medical injuries from motor vehicle collisions, including spine injuries.
- Obtain all available insurance coverages. Despite your best efforts, MIST cases will be harder to settle and the margins will be tighter. Ask for medpay coverage and wage loss coverage. Check your client’s policy first. If your client was a passenger, also check the driver’s policy. If you are told none is available, make sure to request the rejection forms, or the cancellation forms, if applicable. If your client is on a motorcycle, or a pedestrian, or in a horse-drawn wagon, you may use the defendant’s PIP coverage.[iv]
- Coordinate their insurance benefits. Help the client understand how and why you will help them coordinate benefits to maximize their net recovery when the case is resolved. Health insurance should be primary, so the client doesn’t run out of money to pay their bills. Try to save medpay benefits to pay co-payments and deductibles and prescription costs. If this is done effectively, Arkansas made-whole laws provide additional benefits at the time of settlement.
- Know the arguments and educate the adjuster. When adjusters first start the minimal impact defense, remind them that bumpers are designed to prevent property damage, not occupant injury. Familiarize them with the NHTSA website.[v] Understand the mechanism of your client’s injury, the objective and subjective medical findings, and how those are consistent with the impact. If your adjuster is out of state, educate him or her on Arkansas law and the Arkansas Model Jury Instructions on causation and damages.
There are a number of other specific defenses that I want to touch on individually. Many of these you will encounter in MIST cases, but they are not exclusive to those types of cases. While they may be common defenses, they are often not valid, and using the right tools, can be overcome fairly easily.
Tenuous comparative negligence claims
Sometimes an adjuster will seem to arbitrarily asses a portion of fault on your driver and reduce the offer accordingly. I have seen adjusters attempt to assess 25% of fault on my driver for pulling into an intersection and not anticipating that the defendant would run the stop sign or the red light. Similarly, I have seen adjusters assess a percentage of fault on my client for coming to a sudden stop. Arkansas courts allow a jury instruction on comparative fault[vi] with any evidence of comparative negligence.
Determine first whether there is ‘any’ evidence of negligence on your client’s part. Have a detailed discussion with the adjuster about what actions specifically he thinks your client did that constitute negligence. If your client was not paying attention to the road, or driving at an unsafe speed which caused them to stop suddenly, then there is at least an issue of comparative negligence. But coming to a sudden stop or driving through an intersection when you have the right of way is not negligence in itself.
Use the Arkansas jury instructions in your discussions with the defense. Understanding the differing points of view and knowing how they will likely be given to a jury helps both sides make good assessments and contributes to settlement. Also, it helps prepare you for what you will present at trial.
Gaps in treatment
Adjusters like to argue that when there is a significant gap in a client’s medical treatment, the later treatment should not be related to the initial injury. Certainly a gap in treatment can be a factor in determining the reasonableness of medical care and the continued existence of an injury[vii] although the gap itself is not dispositive of the issue.
These are fact issues – so develop the facts that will convince the defense to pay for the claim. A two-week gap in treatment is not necessarily significant, although it would become more significant if a subsequent injury were suffered near the end of the two-week gap. Find out what was going on with your client. Did they have a work schedule which made medical visits difficult? Was the client trying home exercises or hoping the injury would heal on its own? Was there a cost issue in visiting a doctor? Discussing these issues with the client can help you formulate your responses for the defense while also helping your client understand the impact they may or may not have on the value of the claim.
Sometimes collisions can injure parts of your client’s body that had previously been injured. Your client may sustain a new injury to a body part that was previously injured, or may suffer an exacerbation to a prior injury. When this occurs, often the defense will be that there is no new injury, or that the value of the injury should be reduced because it is simply an aggravation of a prior injury.
I think cases with pre-existing injuries present more opportunities than problems for the Plaintiff and their counsel. To begin, a person with a pre-existing injury is more likely than the average person to sustain an injury, which helps explain why your client was hurt. Secondly, when a person has pre-existing injuries they may also have prior objective medical tests which can show the extent of the prior injury. Those tests (frequently MRI’s) can be compared to test results after the wreck to demonstrate precisely how your client’s injury has worsened since the collision. This type of objective evidence resonates with jurors, especially when used in tandem with our Model Jury Instruction that tells jurors to “consider the full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of a condition that already existed and that predisposed your client to injury to a greater extent than another person.”[viii]
As with everything, the key is developing the facts and demonstrating the specifics of how the injury has worsened your client’s lifestyle. Develop specifics regarding their lifestyle. Find out if the additional injury moved them from barely getting around to not getting around, or from being able to do housework an hour each night to only 30 minutes each night. Or maybe they have cut back on work, either in reduced hours or in reduced job duties. Medically, they may need additional treatments, including surgery or addition medications.
There are many other defenses, some valid and other frivolous, that we face in tort litigation. These same principles apply to most of the defenses we face. Learn about your client so you can passionately advocate on their behalf. As you understand more fully what your client is experiencing, you can more effectively communicate that to the defense, or, the jury to reach a positive resolution. Ultimately, the best way to convince the defense is by drawing on prior experience with juries and the only way to get prior experience with juries is by trying cases.
[ii] http://www.ncsc.org/Services-and-Experts/Areas-of-expertise/Civil-justice/Civil-Justice-Survey/Civil-Justice-Survey-Data.aspx from a joint research project of the NCSC and the Bureau of Justice Statistics, which examined characteristics of bench and jury trials in the nation’s most populous counties, representing 23 percent of the U.S. population. See also http://www.bjs.gov.content/pub/pdf/tbjtsc05/pdf
[iii] Richard Y. Schauffler, Project Director, Paula Hannaford-Agor, Robert C. LaFountain, and Shauna Strickland, authors National Center for State Courts, June 2005. Information is derived from the 2001 Civil Justice Survey of State Courts
[iv] See A.C.A. § 23-89-202 and A.C.A. § 23-89-204
[v] I direct them to http://www.nhtsa.gov/cars/problems/studies/Bumper/Index.html
[vi] See Harding v Smith, 312 Ark. 537; 851 S.W.2d 427 (1993).
[vii] See Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W. 3d 153 (2003); Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010)
[viii] AMI 2203