1. Contributory or Comparative Negligence:

Explanation: One of the most common defenses is claiming that the injured party was partially or fully responsible for the accident. Depending on the state, the insurance company may use contributory or comparative negligence laws to reduce or eliminate your compensation.

• Contributory Negligence: In states that follow contributory negligence rules, if you are found even slightly at fault (e.g., 1%), you may be barred from recovering any damages.
• Comparative Negligence: Most states, including Texas, follow comparative negligence rules, where your compensation is reduced by your percentage of fault. For example, if you are found 20% at fault, your settlement will be reduced by 20%.

Countering This Defense: To counter this defense, your attorney will gather evidence to prove that the other party was primarily responsible for the accident. This may include witness statements, traffic camera footage, accident reports, and expert testimony to demonstrate that your actions did not contribute to the incident.

2. Pre-Existing Conditions:

Explanation: Insurance companies often argue that your injuries were not caused by the accident but were due to pre-existing conditions. They may claim that your current medical issues are the result of a prior injury or condition that has nothing to do with the incident in question.

Countering This Defense: Your attorney can counter this defense by providing medical records that clearly document your health before and after the accident. Expert testimony from your healthcare providers can also help establish that the accident aggravated or caused new injuries, even if you had pre-existing conditions.

3. Assumption of Risk:

Explanation: The assumption of risk defense is used when the insurance company argues that you knowingly engaged in a dangerous activity and accepted the inherent risks involved. This defense is common in cases involving recreational activities like skiing, skydiving, or attending sporting events.

Countering This Defense: To counter this defense, your attorney will need to prove that you did not fully understand the risks involved or that the defendant’s actions were so reckless that they exceeded the normal risks associated with the activity. If the defendant failed to provide proper safety instructions or equipment, this could also weaken the assumption of risk argument.

4. Failure to Mitigate Damages:

Explanation: Insurance companies may argue that you failed to take reasonable steps to minimize your injuries or financial losses after the accident. For example, they may claim that you delayed seeking medical treatment or ignored your doctor’s advice, worsening your condition.

Countering This Defense: To counter this defense, you must show that you took all reasonable steps to mitigate your damages. This includes seeking prompt medical attention, following your doctor’s recommendations, and keeping detailed records of your treatment and expenses. Your attorney can use these records to demonstrate that you did everything possible to minimize your losses.

5. No Causation:

Explanation: The insurance company may argue that there is no direct link between the accident and your injuries. They may claim that your injuries were caused by something unrelated to the accident, such as a previous incident or a medical condition.

Countering This Defense: Your attorney will need to establish a clear causal link between the accident and your injuries. This can be done through medical records, expert testimony, and evidence that shows the timeline of your symptoms and treatments. Proving that your injuries were a direct result of the accident is crucial to overcoming this defense.

6. Statute of Limitations:

Explanation: Insurance companies may try to use the statute of limitations as a defense, arguing that you waited too long to file your claim. The statute of limitations is the legal deadline for filing a lawsuit, and if you miss this deadline, your case may be dismissed.

Countering This Defense: In Texas, the statute of limitations for most personal injury cases is two years from the date of the accident. To counter this defense, it’s important to file your claim as soon as possible and ensure that all legal deadlines are met. If there are extenuating circumstances, such as the discovery of injuries after the fact, your attorney can argue for an exception to the statute of limitations.

7. Disputing the Severity of Injuries:

Explanation: Insurance companies may downplay the severity of your injuries to reduce the amount of compensation they have to pay. They may argue that your injuries are not as serious as you claim or that they do not justify the level of damages you are seeking.

Countering This Defense: To counter this defense, your attorney will gather comprehensive medical documentation, including diagnostic tests, treatment plans, and expert opinions, to substantiate the severity of your injuries. Testimony from medical professionals who have treated you can be particularly powerful in demonstrating the full impact of your injuries.

8. Lack of Evidence:

Explanation: Another common defense is the assertion that there is insufficient evidence to support your claim. The insurance company may argue that there is no clear proof of the defendant’s liability or the extent of your damages.

Countering This Defense: To overcome this defense, your attorney will work to gather as much evidence as possible, including photos of the accident scene, witness statements, police reports, and expert testimony. Building a strong, evidence-based case is key to countering claims of insufficient evidence.