Overview of the defense arguments used in car accident cases.

In a perfect world, when you are injured in an auto accident, you would be able to count on the at-fault driver's insurance company to fairly provide you with the compensation that you deserve without incident. For instance, if you needed medical treatment, then the insurance company would pay for your medical bills and provide you with compensation for pain and suffering and other damages as well. There would be no hoops to jump through, no disputes or trickery, and everything would just fall into place.

However, in the real world, insurance carriers do everything they can to avoid compensating you.

Their motivation to deny your claim or pay you less than a fair amount comes from the fact that they stand to make greater profits. They are able to deny your claim or pay you less than you deserve because of flexibility in the law that allows for a great deal of interpretation. So even in situations where the other driver is clearly at-fault, rest assured, the insurance carrier will find some defense theory that they can argue as justification for denying you fair compensation.

In this article, we're going to discuss some of the most common defense tactics used by car insurance carriers in Texas, and we'll discuss how these defense arguments work and what to do about them.

Questions Answered on This Page>

• How do legal defenses work?
• What are common arguments and defenses used in car accident cases?
• How do attorneys prepare for these defenses?

Conflicting statements and insurance companies' obligation to defend.

Even if it's your lucky day and the insurance carrier who represents the person that caused your accident doesn't have some unscrupulous desire to avoid paying you, they still must contend with their own customer's contentions about how the accident occurred. When the at-fault driver tells their insurance carrier their version of events, you can imagine how often they tell the truth: not very often at all. And since an insurance carrier is obligated under Texas law to defend their insured driver in court, they are therefore required to provide them with claims support and to pay for an attorney to defend the insured driver's from your claims.

Thus, if the other driver says that the accident is your fault (even partially your fault) then the insurance carrier is obligated to fight your claim. So if you've ever wondered why or how insurance carriers fight you when it's clear the accident is not your fault, it's as simple as that.

The thing that most people don't know is that an insurance carrier is much less afraid of being sued by you than they are for being sued by their own insured driver.

That's because where the other driver claims that you are at fault and the insurance carrier refuses to defend them, their own customer can sue them for acting in bad faith, for violating the terms of their insurance contract, or for any number of violations of the Texas Insurance Code. Such a lawsuit will cost the carrier considerably more than your injury claim and potentially result in very bad publicity. Thus, they would rather take the risk-free approach of fighting you rather than fighting their own customer.

Again, though, this is assuming that they want to play fair in the first place. The reality, however, is that most insurance carriers don't need their customers twisting their arms to convince them to fight your claim. Most insurance carriers are happy to oblige as a matter of protocol. But why? While Texas is an at-fault state (meaning you have to prove the other guy's fault before anyone is obligated top pay), some other states (like Florida) are no-fault states (meaning that no matter who caused an accident, your own insurance carrier must pay for your losses). In these no-fault states, insurance carriers basically have to pay, and it costs them millions, as reflected in the obscenely high insurance rates found in most no-fault states. On the other hand, in at-fault states like Texas, insurance carriers see the open-ended laws as a wild west where they can deny any claim they so desire, knowing that they can often get away with it.

But when an insurance carrier denies a claim (in full or only accepts partial liability), they still must do rule under the law. This means that they articulate their reason for denial in the form of a Texas-court-recognized defense argument.

Common defense arguments:

Here you'll find several examples of arguments that defense lawyers and insurance carriers frequently use to defeat car accident cases like yours. While this is not an exhaustive list, it certainly reflects the most common arguments as well as several counter intuitive arguments that you'd probably never expect them to make. Keep this in mind: the fact that you don't see these arguments coming is the very reason that they are effective against you. By hiring an attorney who has defeated these arguments time and time again, you stand the best chance of obtaining fair compensation.

• Comparative Fault: The defendants always try to find SOME negative thing you did that contributed to the accident. If they're able to, then your award could be diminished or even have your case dismissed.
• Failure to Keep a Lookout: We all have a duty to watch other cars' actions. Even when the other driver does something negligently, we should always be paying enough attention to at least be able to lessen the damage. Naturally, then, insurance carriers love to argue that, even tough their driver did something wrong, you failed to pay close enough attention to avoid their wrongdoing.
• Failure to Timely Apply Brakes: If you see an accident happen in front of you, a reasonable and prudent person would slam on the brakes. If you were distracted by something---like your phone or the radio---then you arguably contributed to the accident. Again, insurance carriers love to argue that injured persons failed to use their brakes, even when that's not the case.
• Preexisting Injuries: This is a big area of defendants' focus. After all, if you hurt your back in a workplace accident 2 years prior, you can't force the defendant driver now to pay for it. This usually results in the insurance carrier trying to dig through old medical records to find something, anything, they can blame your new injury on. For instance, if you had an old sports injury, they will argue that perhaps that's the true origin for you injury now. Also, they often like to argue that your injury is more due to old age than anything else.
• Plaintiff's Failure to Establish Proximate Cause: This is a technical matter, but in essence, your attorney must be able to show a cause and effect relationship between the other driver's misconduct and your injuries, and there can't be any other random cause that severed the cause and effect relationship. Since you must prove that such a relationship exists, they will work to prove that it doesn't, or, more specifically, that you failed to prove it does.
• Act of God: When an accident occurs simply due to the inherent violence of nature, then arguably the defendant cannot be held financially responsible. But where do we draw the line? Surely, if a tornado picks up the defendant's car and hurls it at yours, the Act of God defense would shield them from liability, but should the same thing apply to slight winds, rain, or icy roads? Guess what. Insurance carriers will argue that it applies to all of the above, and you'll need a Texas car accident lawyer who can shoot those arguments down.
• Unavoidable Accident: This broad category of defenses allows the defendant to contend that THIS or THAT made his running into you inevitable and not his fault. The main problem with this defense is that a plucky enough insurance adjuster or insurance company lawyer could apply this line of reasoning to any scenario. Much the like Act of God defense, there is a time and a place where this defense should rightly be used, and then there are all of the other scenarios where insurance carriers use it unfairly.
• Third-Party's Fault: As its name implies, this allows the defendant to point the finger at another person. Often enough, it's a "mystery person" who allegedly caused the accident and then drove off. You see, when a jury renders a verdict in a car accident case, they must fill out a questionnaire that asks them how much fault they want to put on the defendant that you sued, and how much they want to put on other people, all expressed as a percent. If the defendant can convince them to put any amount of fault on a person who doesn't exist, then that means the defendant and their insurance carrier can pocket the savings.
• Insurance Policy Does Not Apply: Sometimes, the insurance company will throw up its hands and claim that they are under no legal obligation to pay for their driver's claims at all. Most states have very specific rules dictating how car insurance policies should be written. Texas has some regulations, but not many, and the result is that car insurance carriers often sell junk policies that have all kinds of loopholes and exclusions. Consequently, when their insured gets into an accident, the insurance adjuster will simply say, "Looks like our driver was at fault, but the policy doesn't cover your specific type of accident. Sorry." Our attorneys know how to spot a junk policy and what to do about it.

Call Grossman Law Offices

We have over 25 years of experience handling car accident cases in the state of Texas. Feel free to call us at (855) 326-0000 to receive a free consultation. We have attorneys read y to speak with you regarding your possible case 24/7.

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