All You Wanted To Know About California Personal Injury Laws

Defenses To Intentional Personal Injury Acts

The majority of personal injury attorneys do not defend personal injury claims.  Generally speaking personal injury defense attorneys are usually regarded as insurance defense.  Personal injury defense attorneys have an obligation to protect the interests of the defendant in a personal injury lawsuit.  Insurance companies have an obligation to defend and indemnify the insured.  Meaning they have to protect the insured and that includes hiring an attorney to defend and paying for any damages caused.  At lest one insurance company has been making a lot of advertisements on television that asks if you are covered.  They suggest that the greedy personal injury attorney is going after the wrongdoer for every penny he has.  The reality is that most personal injury attorneys are reasonable and will work the attorney for the wrongdoer to obtain a settlement that is fair to both sides.  Sometimes the defendant has no assets and has done great harm in those instances the personal injury attorney will ask the defense personal injury attorney to pay all monies under the insurance policy.  When the insurance company refuses then it puts the insured at risk of a large judgment much greater that what the insurance policy covers.  This is deemed unfair if the insurance company knows there will likely be a higher jury verdict.  As a result the insured has a right to sue his own insurance company for bad faith.  Insurance companies know this and the personal injury attorney and the defense personal injury attorney will likely reach a resolution in these situations without much bickering.  The commercials often portraying personal injury attorneys as heartless greedy lawyers are simply untrue.  The personal injury attorney seeks to recover for compensation for the client and if there is no resolution, more likely than not the winner or loser will be the insurance company and the injured party.  The person that is sued by personal injury attorney is not likely to suffer an economic loss as a result of the lawsuit.  Win or lose the personal injury lawsuit does financially affect the defendant in the vast majority of cases or at least not much more than the jurors.  One of problem sis that the defense personal injury  attorneys are really insurance defense attorneys and even though they are supposed to protect the insured they are generally biased and look out for the interests of the insurance company.  The defense personal injury attorney want to protect the insurance company, because that is the party that pays the legal bills sometimes as much as $300 per hour.  Would the personal injury defense attorney be at least a little biased when their standard of living is directly related to how happy the insurance company is ?  Personal injury defense attorneys rarely represent people directly and rarely if ever refer to themselves as a personal injury defense attorney.  They call themselves insurance defense attorneys and if you look through any major list of jobs including legal publications you will see that there are jobs for insurance defense attorneys, but never for personal injury defense attorneys. 

               There are several defenses used by personal injury defense attorneys in responding to personal injury attorney lawsuits and claims.  One defense often employed by defense personal injury attorneys is called privilege.  Generally speaking privilege means that the defendant has acted to further an interest of social importance that is entitled to protection under law, even if there is injury to the party filing the personal injury claim.  Whether or not there is a privilege depends greatly on whether or not his own interests or those of the public permit and require the actions for the purpose of advancing a social policy.  It is dependent on what society values and what is most effective to promote a general welfare.  Defense personal injury attorneys may find themselves invoke a privilege in things pertaining to socially important events.  In today’s society such things as global warming and alternative energy are things that may lead to actions that result in injury to which defense personal injury attorneys may invoke the privilege defense. 

                Another defense often used by defense personal injury attorneys is based on consent.  The consent of the person injured will often avoid liability for intentional actions by another.  Consent is not really a defense, but purports to show that there was no wrong in the first place, because of the consent.   Basically a person is free to agree to have harm done upon him.  Where a defense personal injury attorney and plaintiff’s personal injury attorney might run into problems is with implied consent, where it is not really certain that the personal injury claim arises from an unwanted personal injury or a consented personal injury.  Implied consent in personal injury claims is determined by looking at the person making the personal injury claim, specifically the actions and words.  Often the actions are given greater weight than the words spoken.  In the earlier years of personal injury and sports defense personal injury attorneys and personal injury attorneys would litigate over sports injuries.  Sports are risky and the players consent to harm that could come from playing sports, but personal injury attorneys seek damages when the injury arises from acts that were not consented to.  The consent to personal injury from sports is limited harm that may result from following the rules.  A personal injury attorney would likely represent a person claiming personal injury following a basketball where another player repeatedly kicks the ball which then leads to an accidental injury.  The rules of basketball do encourage or permit that players repeatedly kick a basketball and the person making a personal injury claim would not expect players make repeated attempts to kick a basketball.    Personal injury attorneys also look at the mental state of the person to making the personal injury to determine if the personal injury claimant can make a personal injury claimant.  The personal injury attorney will look at the mental state of the person, because if the person is mentally challenged, a child, or under the influence of alcohol or drugs then the personal injury claim is valid, because there could have been no consent to be injured.  The same is true for persons that undergo surgery without their consent, but there is an exception where there is an emergency and it would be impractical to obtain consent.  In these cases there is no personal injury claim, because there is implied consent.  Personal injury attorneys as well as defense personal injury attorneys will look at the degree of consent given as well.  Consent cannot be exceeded, a person may consent to a fist fight and be stricken with bare hands, but not to be stricken with brass knuckles, rocks or weapons.

Intentional Personal Injury Defenses Part 2