DURING THE COVID ERA, WILL A PRIOR INJURY ERASE A PI CLAIM?
Jan. 29, 2021
The correct answer is maybe. During the era of Covid we see less cars on the road and thus less accidents. However, when there is an accident, the insurance company will fight just as hard to pay as little as possible.
Prior Injuries Are Not Always a Problem. However they do factor in when in trial or when trying to settle case.
They are a part of life. Unfortunately, prior injuries are an opportunity for the defense insurance company, to try to box a victim in with their preconceived notions about what factors discount the value of an accident claim.
A good lawyer won’t let the insurance company get away with it! This is different from an aggravation, where the prior condition did not heal. What I am talking about here are prior injuries that DID resolve. Until kids are allowed to drive cars, most clients will have some kind of back or neck problem in the past “from living”.
Adult spines get dinged from time to time. It could be from sports or prior accidents. This includes auto and a slip and fall in your shower. Priors aren’t always a bad thing. They may actually help the case. How? Susceptibility is another reason the crash may cause less property damage to the a car than to the human spine. Healing from something in the past doesn’t mean a later injury to that same area will cause less harm.
It is just the opposite. It may mean the outcome will be worse. In some cases it may cause a herniation, not just a sprain/ strain. Why should the defense get a discount, when their client caused a forever injury to the plaintiff’s life. Many victims have had a prior accident or had neck/back pain in his/her past.
These factors are experienced by many of us, and should not be a factor in the negligent driver getting off without compensating the victim for their injuries. There is no reason for a settlement discount, other than insurance the company’s arguments.
Insurance companies think they have a right to short the claimant of what is owed. However, the law gives them no such discount. Most states recognize that negligence need not be the sole cause of the injury, so long as
it contributes substantially to the outcome. A good lawyer points that out to the jury panel during voire dire and explains the correct law to them.
A Plaintiff’s lawyer will explain that the law recognizes what some call, “as is” justice. You take the person “as is”. Justice is not reserved for people who are perfect specimens of health. People who are not in the prime of
their physical life don’t get treated as second class citizens who can only receive discounted justice.
People with wear & tear, bumps & bruises, who have been hurt in the past or had health problems,
can get full justice too. It’s called equal justice or justice for all as set forth in the United States Constitution.
If discussed, and explained, to the jurors, I think everyone will agree that’s the way it should be?
Throughout the trial, a good plaintiff attorney will remind the jurors of this universal truth, by using the phrase “as is” justice. When the defense neurosurgeon says your client had degeneration in her spine, you point out this is normal aging and say, “Are you suggesting that an injury matters less when a person isn’t in the prime of their physical life? Are you familiar with the concept of susceptibility and ‘as is’ justice?
The law allows for the Egg Shell Plaintiff’s Doctrine known as the Idiosocratic plaintiff doctrine. That doctrine says you take the plaintiff as you find him. Thus if one drives negligently, and the injures to the one person in the world whose bones would shatter upon impact, they would be responsible for all injuries.
Most lawyers agree, The Law Wins Every Time and it is often not worth fighting “the law”. HOWEVER, YOU NEVER KNOW WHAT SWAYS A JUROR.