We advise clients and potential clients all the time that to win a case, you must prove two elements: liability and damages. Liability just means proving that the opposing party was responsible for your injury. Once you prove that, you must then also prove your damages—e.g., a monetary value that reflects the impact your injury has had on your life. Damages include past and future medical bills, lost wages, and most importantly, pain and suffering.
Liability was one issue we had to overcome in a recent case we handled for a client who was a cyclist hit by an SUV. In that case, our client (we’ll call him “David”) was riding his bike down the street when an SUV failed to leave adequate room, clipping David with the side-view mirror and side of the SUV at a high speed.
David was jolted off his bicycle. The impact was so severe that it destroyed the SUV’s side view mirror and jolted the entire mirror assembly from its housing, leaving it dangling by a wire:
David suffered numerous injuries, including a broken shoulder, fibula and ribs. Even though he was wearing his helmet, his head struck the asphalt so hard that he suffered a concussion despite the helmet. He required extensive medical treatment over many months, but was able to avoid surgery.
We quickly investigated, gathered all available evidence, interviewed witnesses, analyzed David’s medical records, and prepared and sent a demand to the insurance company. We included a copy of the police report, which placed blame on the driver and none on David:
(Note: “Operator Contributing Factor” 9 means “Improper Passing”).
(Note: “Operator Contributing Factor” 1 means “No Contributing Factors”).
From a practical perspective, you would think this would be all you need to establish that the driver was at fault. Spoiler alert: insurance companies rarely make it that easy. Here, the insurance company rejected the demand, alluding in part to their belief that the driver who hit David was not completely at fault, and that a jury would place part of the blame on David himself.
We immediately filed a lawsuit. In the driver’s Answer to the lawsuit, they continued to deny that she was responsible.
Our Complaint declared:
The insurance company responded:
We also said:
Once again, despite the police report to the contrary, the insurance company denied its driver was responsible for David’s injuries:
So, we had a situation where the police said the driver was at fault, our client was seriously injured, but the insurance company still wanted to blame our client and not fully compensate him for his injuries. This is when you need a lawyer with the skills and experience to establish liability.
We immediately took the deposition of the driver. At first, she tried to carry the insurance company’s line and deny responsibility, saying she thought maybe he was riding erratically. She never told the police this at the scene, and we were prepared for this and didn’t give up. After a series of cross examination questions and exhibits laying out all the evidence against her, she realized she was stuck, and capitulated:
To make absolutely sure she could not wiggle out of her answer at trial, we went even further to nail her down:
She went on to admit that David was all the way on the side of his lane, and that she had plenty of room to pass him safely, and she had no explanation for her failure to do so.
We now had the driver locked in as the only responsible party, and we had established liability despite the defendant’s initial denial. The defense amended their Answer a few days later to admit liability for the crash.
We now had to focus on proving David’s damages. We already had a head start, since we had obtained his medical records and bills and investigated and identified key witnesses on the scene. From the 911 tape we obtained through an open records request, we identified the witness who called 911. On the tape, she told 911 David was “really hurt,” and that he needed an ambulance right away.
We immediately took the 911 caller’s deposition. At her deposition, we played the 911 call and got her to confirm she was the caller on the tape. She confirmed on the record that she arrived on the scene just after the crash and that David looked seriously injured:
BOOM. A case for which the insurance company refused to pay even twice David’s medical bills just a few months earlier was now a particularly strong case where they had a substantial risk of a high verdict against their driver. We settled the case a few months later at mediation for a total amount of over five times David’s medical bills.
Not many lawyers have the skills and persistence necessary to overcome low offers and prove up their client’s case. At Rafi Law Firm, that’s what we do every day—and insurance companies and defense lawyers know it. Call 404-800-9933 today or click here for a free case evaluation.
