Plaintiff’s winning percentage in court has declined over the last several years, mostly because insurance company revenue has skyrocketed over this same period to more than $1 trillion per year. As a result, these companies can now hire more effective lawyers and allow them to go to trial if necessary. Usually, the insurance company’s trial strategy in a vehicle collision claim revolves around one of the three defenses discussed below.
Back in the day, when the plaintiff’s winning percentage was high, and insurance companies had limited resources, almost any lawyer could successfully handle a vehicle collision claim. In the current environment, only a Marietta personal injury attorney can obtain the best possible result in such claims. That result usually includes maximum compensation for the victim’s economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Last Clear Chance
All drivers have a duty of reasonable care at all times. It does not matter what other motorists do or don’t do. This principle is the basis of the last clear chance defense. This defense is especially common in the wrong-way wrecks, which often happen on the rural, two-lane roads that crisscross much of Georgia.
Assume the weather is clear and bright when Brenda crosses the center line and collides with Alicia. If Brenda saw Alicia begin to cross the line and Brenda did not suddenly change lanes or speeds in response, Brenda probably had the last clear chance to avoid the crash. So, Brenda is legally responsible for damages because she was the last driver to violate her duty of care.
Now assume the road is wet when Brenda crosses the center line and collides with Alicia. If Brenda makes a sudden emergency maneuver under those conditions, she may lose control of her vehicle. In other words, doing nothing and bracing for impact was the best thing she could do. Therefore, Alicia is legally responsible for damages.
Insurance company lawyers must clearly establish every element of the last clear chance defense, and any other affirmative defense, in order for it to hold up in court.
This affirmative defense, which often comes up in pedestrian injury claims, is a lot like last clear chance. Once again, the insurance company must establish both elements of this defense, which are:
- Reasonable Reaction: If they cause crashes, most tortfeasors (negligent drivers) react reasonably. They pull over, help victims if they can, wait for emergency responders to arrive, and cooperate with investigators.
- Sudden Emergency: A jaywalking pedestrian is not a sudden emergency, even if the jaywalking pedestrian “darts out into traffic.” Stalled cars and large potholes aren’t sudden emergencies either. Instead, all these things are everyday hazards.
The “sudden emergency” category is reserved for completely unexpected situations, like hood fly-ups, lightning strikes, and tire blowouts. So, to Marietta personal injury lawyers, this defense only applies in limited situations.
Contributory negligence, on the other hand, could apply in almost any car crash claim. In both above examples, each party may have been partially at fault. Drivers should stay on their side of the road and pedestrians should cross the street with the light in the crosswalk.
Comparative fault also affects cases differently than the other two defenses. In most cases, contributory negligence only reduces the amount of compensation the victim receives. Like most other jurisdictions, Georgia is a modified comparative fault state with a 50% threshold. If the victim was less than 50% responsible for the wreck the tortfeasor must pay a proportionate share of damages.
Procedurally, jurors listen to the evidence and divide fault accordingly, be it 50-50, 80-20, or whatever. Then, the judge adjusts the damages in accordance with OCGA §§ 51-11-7 and 51-12-33.