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Two Orlando Auto Insurance Company Courtroom Tricks

In Florida car crash cases, it’s very important to have an aggressive personal injury attorney in your corner, because your lawyer is committed to maximum compensation. On the other hand, insurance company lawyers want to minimize the compensation victims receive, because the company makes money by maximizing revenue and minimizing expenses.

To accomplish this goal, insurance companies often rely on one of several defenses in Florida. It’s important to note that, because of the litigation discovery process, your attorney is never caught unaware, and always has an opportunity to prepare for insurance company defenses.

The Contributory Negligence Defense in Florida

Many times, both the victim and tortfeasor (negligent driver) are partially at fault. For example, the victim might have changed lanes illegally and the tortfeasor might have been speeding.

Contributory negligence is a two-step process in most Florida courts. As a preliminary matter, insurance company lawyers must convince the judge that contributory negligence did in fact exist. Many times, the victim’s “negligence” was so slight, perhaps speeding one or two miles per hour over the speed limit, that it could not have possibly contributed to the vehicle collision.

Then, the jury apportions fault on a percentage basis between the victim and tortfeasor. Florida has a victim-friendly pure comparative fault law, so the judge divides damages based solely on the percentage of fault. For example, if the jury divides liability 50/50 between the victim and tortfeasor and the damages were $100,000, the victim would receive $50,000. In many other states, such as South Carolina, the victim would receive nothing under these same facts, because the Palmetto State has a 51 percent threshold.

To maximize compensation in contributory negligence cases, attorneys often emphasize all the ways that the victim was a careful driver while clearly showing the jury that the tortfeasor created the environment for the crash, bore most of the blame in causing the collision, or both.

The Sudden Emergency Defense in Florida

This doctrine excuses the tortfeasor from liability from a car crash if the tortfeasor:

  • Faced a sudden emergency, and
  • Reacted reasonably in the wake of the emergency.

In this context, “sudden emergency” has a very specific meaning. The event must be something totally unanticipated, like a tire blow-out. Some other hazardous events, like a large pothole that causes loss of control, maybe somewhat unexpected but are not completely unexpected. Furthermore, the tortfeasor must react reasonably, usually by pulling over to the right, after the emergency occurs.

If either element is not present, the defense is legally unavailable.

Contact Tenacious Attorneys

Many common insurance company defenses ring hollow in Florida car crash cases. For a free consultation with an experienced personal injury lawyer in Orlando, contact Oldham & Smith today, because you have a limited amount of time to act.

Charges Filed In Brevard County Dual Fatal DUI Crash

Authorities charged 21-year-old Tanasia Shelton with two counts of DUI manslaughter for her role in a June alcohol-related car crash.

Investigators say that Ms. Shelton’s BAC level was well above the legal limit when she drifted onto the wrong side of the road in her Jeep, hitting another vehicle head-on. The other driver, 28-year-old Ariel Arriera of Melbourne, died at the scene. Ms. Shelton’s passenger, 23-year-old Zoe Barbee of Orlando, was rushed to a nearby hospital with serious injuries; she was subsequently declared dead. Ms. Shelton said she had been drinking that night prior to driving, but could not remember how much. At the time of the crash, officers noted that her breath smelled of alcohol and that she slurred her speech.

She is being held at the Brevard County Detention Center without bond.

Establishing Liability in Florida Alcohol-Related Crashes

If the tortfeasor (negligent driver) is charged with DUI, the victim/plaintiff can use the negligence per se shortcut to establishing liability for damages. In a traditional negligence case, victims/plaintiffs must establish five elements by a preponderance of the evidence (more likely than not). But in negligence per se cases, they need only establish that:

  • The tortfeasor broke a safety law, such as DUI, and
  • That infraction substantially caused the victim/plaintiff’s damages.

In some cases, most notably safety law violations that do not carry jail time, negligence per se is the only evidence of negligence and not absolute proof of liability.

Even if the tortfeasor is not legally intoxicated, the victim/plaintiff can still prove impairment by using circumstantial evidence. Given the low standard of proof, this objective is often rather easy to accomplish. For example, if the tortfeasor recently left a place where alcohol was served, the jury may conclude that more likely than not, the tortfeasor had been drinking.

Responding to Some Defenses in Florida Car Crash Cases

When the tortfeasor crosses into oncoming traffic, insurance company lawyers often assert the last clear chance defense on behalf of their clients. According to this doctrine, the tortfeasor is not liable for damages if the victim had a reasonable opportunity to avoid the crash yet failed to do so. But for the defense to apply, the victim must have the last clear chance and not the last possible chance. There is a significant difference in Florida, because many times, the victim may see the other car coming but can do nothing to avoid the crash.

If the victim was a passenger in the tortfeasor’s car, the insurance company usually raises the assumption of the risk defense. There are two elements:

  • The voluntary assumption of
  • A known risk.

Similar to the last clear chance defense, there is a difference between a theoretical risk and a known risk. Intoxication is a theoretical risk because many drunk drivers do not cause car wrecks in Florida. But if the passenger saw the tortfeasor driving erratically or had other similar cause for concern, the risk may be a known one.

Rely on Experienced Attorneys

Car crash victims are entitled to fair compensation, but insurance company lawyers put up a tough fight. For a free consultation with an experienced personal injury lawyer in Orlando, contact Oldham & Smith. We are on your side.

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