Insurance companies will play hardball to try to defeat your injury claim. I know this because I had a behind-the-scenes look at how insurance companies defend injury claims. You see, for several years after law school, I worked for a law firm defending injury claims on behalf of insurance companies. The truth is, under some circumstances, you can defeat the insurance companies and win your injury case even if you think you have no chance whatsoever.
Gabby’s Story
Let me tell you the story of my past client, Gabby. I was having just another day at the office when my office got a call from Gabby. My receptionist got several of the details about Gabby’s case and then added me to the call. I have a vivid memory of my first conversation with Gabby. I could tell from our first conversation that Gabby was a very kind soul who had simply been at the wrong place at the wrong time.
Gabby was hit by a vehicle at night in downtown Louisville. During my first conversation with Gabby, she told me there was probably nothing I could do for her as she was likely at fault for the accident. She only called because she wanted to make sure that she 100% positively did not have a case. Gabby admitted that she had drunk some alcoholic beverages that night before the incident and that she was in an argument with a family member when the incident happened.
She did not recall many details about the incident; like if she had the right of way, as she did not even recall if the crosswalk light was signaling to her that it was safe for her to cross the street in the crosswalk. She did recall being in an argument with her family member who was on the sidewalk she was departing and that she was crossing at an intersection on or at least near the crosswalk. She admitted to me she was caught up in the argument and not really paying attention to whether it was safe to cross. She remembered making it a little bit across the street when she was suddenly struck by a vehicle.
Investigation
Her injuries were significant, but Gabby was lucky it wasn’t worse. She suffered patellar fractures in both knees, along with a fracture and partial tear in her right shoulder. She also sustained lacerations to her head, knees, and hands, and experienced headaches, neck pain, back pain, and pain in both shoulders. Fortunately, she did not require any surgeries to treat her injuries, rather her treatment included physical therapy and pain management treatment.
I felt so bad for Gabby. I knew it was possible Gabby did not have a case worth pursuing, but she was such a nice person; I wanted to do everything I possibly could for Gabby. So I signed her up as a client and got to work investigating her case. I told her to focus on her medical treatment while I found out everything I possibly could about her accident. Immediately, we began investigating her case.
We contacted all the businesses with offices near the intersection where Gabby’s incident occurred to see if they had any surveillance footage that caught the incident on video. After several communications with the nearby businesses, we were able to track down two separate videos depicting Gabby’s incident on video.
Video Evidence
I remember watching the videos for the first time. Before watching the videos, I was nervous for Gabby. She was the nicest client I could ever ask for. She truly had very little hope that I could do anything for her. And in all honesty, if I could do anything for her, it was going to come down to whether or not I could make any legal arguments for her that the driver who hit her was at least partially at fault for the accident.
First Video
I already knew that, based on what Gabby told me, there was a chance that 100% of the liability for the accident could be on her. If that happened, Gabby would get nothing. I took a couple of deep breaths and watched the videos. I watched the first video, which showed a side angle of the incident. I was not able to tell if Gabby had the right of way. I could not see the crosswalk light in the video. I also was not able to tell if the driver was crossing the intersection on a green light, yellow or red light, as the traffic signal was cut off from the video.
However, several things stood out for me in the first video:
- Gabby had clearly been in the intersection for some time before being struck, having even almost cleared the driver’s lane of travel.
- The impact flipped Gabby into the air—a scary thing to see.
- Despite Gabby being clearly in the intersection, it was obvious the driver did not slam on his brakes until he struck Gabby’s body. I could tell this because his brake lights did not come on until after his vehicle impacted Gabby’s body.
- Lastly, after slamming on his brakes, despite traveling at least what I could estimate to be the speed limit of 25 mph, he was able to bring his vehicle to a complete stop mere feet after slamming on his brakes.
This video helped Gabby’s case. It was clear I now had some arguments that the driver was at least partially at fault for this incident. Despite Gabby clearly being in the intersection, the driver must not have been paying much attention to the roadway at all or he would have been able to slam on his brakes and stop well before striking Gabby. This was the legal argument I needed to present to the other driver’s insurance carrier to possibly help secure a settlement for Gabby.
Second Video
I then watched the second video. This video was taken from the other side of the street. I watched as I noticed that Gabby was well within the intersection and in the driver’s lane of travel before he even entered the intersection. I also noticed that the driver’s light turned yellow as he entered the intersection. While Gabby should not have been crossing the street at that exact time, the driver still should have seen her with plenty of time to brake. Instead, he struck Gabby, flipping her body into the air. A very scary incident.
So I watched these videos my law firm had tracked down. The videos were all I needed to piece together an argument that the driver shared some of the blame for this accident. I knew, however, that on a good day in court, we may only be able to prove that the driver was up to 50% at fault for the accident. But that was enough to win Gabby’s case by possibly getting her a settlement.
Legal Strategy
You see, in Kentucky, the state I practice law in, one can recover damages from any party deemed any percentage at fault for the accident. But you are limited to only collecting the percentage of your damages that the party is deemed to be at fault. Thus, in Gabby’s case, if we could show the other driver was 50% at fault, Gabby would be entitled to 50% of her damages against the other driver. In Gabby’s case, that would mean 50% of her medical bills and 50% of her pain and suffering damages.
Even under the facts of Gabby’s incident, though, I knew deep down that if Gabby’s worst day in court came true, she could get nothing for her claim. This was in the back of my mind before we began.
Settlement Negotiations
All according to plan, in 9 months we moved into settlement negotiations with the driver’s insurance company. Gabby wrapped up her medical treatment. After a few months of medical treatment, my office then gathered all of Gabby’s medical records and bills. I sent a written demand to the driver’s insurance company to kick off settlement negotiations. After several rounds of negotiations, we ended up settling Gabby’s case for $75,000. If we could have proven the driver was 100% at fault for the accident, we certainly could have gotten Gabby more money. But on a good day, again, we would only be getting maybe 50% of her damages against the other driver. So Gabby decided to take the $75,000 settlement rather than risking it and possibly getting nothing if we took her case to court. This was a win. It was certainly better than getting zero for her claim.
Key Takeaways
The lesson you can learn from this is just because you think you may be at fault does not always mean you are going to be deemed 100% at fault in your accident. Your seemingly unwinnable injury case may be winnable after all. So, don’t automatically give up on your case right after the accident. If you’ve been involved in an accident, you may not be aware of all the facts surrounding the accident right after the accident. So, don’t automatically give up on your case for the accident. I would encourage anyone involved in an accident who thinks they may be 100% at fault for the accident to consider doing some digging. Investigate all the facts and then decide. If you don’t know where to begin, call an injury attorney to see what they think about your situation. Every injury lawyer I know, including myself, provides free consultations and never takes a fee unless they win your case. So, you don’t have much at risk by calling an injury lawyer.
The thing is, just because you discovered evidence that has made your seemingly unwinnable case now winnable does not mean that the insurance adjuster or claim handler you are dealing with in your case will not try to trick you with the goal of devaluing your injury claim. In any injury case, it is crucial that you know how to press the right buttons when dealing with an insurance adjuster or claim handler.
Lastly, if you’ve been injured in a car accident, slip or trip and fall incident, or dog attack incident in Kentucky, remember: don’t wait; call Tate.
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