Responding To Common Defenses In Motorcycle Wreck Claims
The motorcycle crash fatality rate has increased significantly since the 1990s. Even if these victims survive, they often sustain permanent injuries. Compensation in wrongful death and permanent disability cases is usually quite high. Since so much is at stake, insurance companies often pull out all the stops in their attempts to reduce or deny compensation. Some of the more common defenses are outlined below.
In this environment, you need a San Jose motorcycle accident attorney who pulls out all the stops for you. Wrongful deaths and permanent disabilities cause severe financial hardships, to say the least. Your family needs maximum compensation to carry on after it suffers such a loss. No matter what TV commercials imply, insurance companies only want to pay the minimum possible. Unless you have a strong attorney, the scales of justice are hopelessly unbalanced.
Contributory negligence is perhaps the most common insurance company defense in all vehicle collision claims. This legal loophole shifts blame for the accident from the tortfeasor (negligent driver) to the victim.
For example, the insurance company might admit that Dana illegally turned in front of Chris’ motorcycle. But an insurance company lawyer might argue that Chris’ excessive speed, as opposed to Dana’s illegal turn, substantially caused the crash.
The insurance company has the burden of proof and the burden of persuasion in these situations. First, an insurance company lawyer must convince the judge that contributory negligence was a factor. Unless Chris was travelling more than about 15mph over the limit, his “excessive speed” probably did not play much of a role in the accident. Second, the insurance company must sell the same tale to skeptical jurors.
In these situations, jurors must apportion fault between the victim and tortfeasor on a percentage basis. California is a pure comparative fault state. So, even if the victim was 99 percent responsible for the crash, the tortfeasor is still liable for a proportionate share of damages.
Motorcycle Helmet Defense
This defense is rather complex in California, so strap yourselves in. California has a universal helmet law. However, failure to wear a helmet does not torpedo a damages claim. Instead, the insurance company can tell jurors the victim wasn’t wearing a helmet. Then, jurors may decide what weight, if any, to give helmet non-use.
To refute this defense, a San Jose personal injury attorney often focuses on the nature of head injuries. The motion, as opposed to the trauma, usually causes these wounds. The brain does not fit snugly in the skull, like a hand in a glove. Instead, the skull is basically a water tank which suspends the brain in fluid. Any motion causes the brain to hit the inside of the skull.
Have you noticed that walking or pacing sometimes clears your head? That’s because the motion causes your brain to hit your skull. Mild motions like these are stimulating. Sudden, violent motions are often devastating.
The Motorcycle Prejudice
This final defense is not in any law book. But it is very real. The motorcycle prejudice is not as strong as it was in the twentieth century, but it still exists, and insurance companies still use it.
Many people believe that motorcycle riders are reckless thugs. These jurors are more likely to embrace legal defenses, such as contributory negligence and the motorcycle helmet defense.
Defusing a deeply-held prejudice usually doesn’t work, even if the prejudice is clearly wrong. The feelings are too strong. So, a San Jose personal injury attorney usually separates the victim from the prejudice. So, jurors may believe that most riders are thugs, as long as they believe that Chris was not a thug.
Contact a Diligent Attorney
Motorcycle crash claims usually involve formal and informal defenses. For a free consultation with an experienced personal injury attorney in San Jose, contact Solution Now Law Firm. Home, virtual, and hospital visits are available.