Arguments Frequently Used By Insurance Companies 66 LEGAL DEFENSES AND ARGUMENTS USED BY INSURANCE ADJUSTERS TO DEFEAT OR DIMINISH ACCIDENT VICTIMS' CLAIMS 1. Plaintiff made unnecessary and unexpected stop. 2. Plaintiff made unsafe lane change without warning. 3. Plaintiff gave no stop or turn signal. 4. Plaintiff could have avoided accident if not exceeding safe speed for conditions. 5. Plaintiff exaggerates defendant's speed and other facts surrounding accident so as to diminish his credibility which makes him an unreliable or unbelievable witness. 6. Plaintiff's recollection of times, speeds and distances is so inaccurate as to indicate inattentiveness or incompetence in driving and at the very least diminishes his credibility. 7. Plaintiff didn't notice defendant until impact or immediately before impact and therefore inattentive. 8. Plaintiff had warning of danger within sufficient time to avoid accident if paying attention. 9. No complaint of pain, at scene of accident, by plaintiff to anyone. 10. No indication on police report that plaintiff complains of pain at scene. 11. No objective signs of injury at scene of accident like, cuts, bruises, etc. 12. Minimal property damage to either or both vehicles involved. 13. Plaintiff received no treatment for substantial period of time following the accident. 14. Cost of treatment was excessive and period during which plaintiff was treated was excessive in light of standard charge for such services in the community and normal period of disability for such injuries. 15. Seat belts or other safety devices available in vehicle but not used by plaintiff. 16. Equipment defects in plaintiff vehicle: Tires bald, brakes not working, tail lights not working, turn signals not working. 17. Plaintiff's driving ability and perception impaired by use of alcohol, medication, or drugs. 18. Plaintiff had hearing or vision defect and wasn't wearing glasses or hearing aid. 19. Plaintiff had other physical defect, i.e., epilepsy, headaches, sickness, etc., which impaired his driving ability and perception. 20. Plaintiff under doctor's orders not to drive. 21. Plaintiff not licensed to drive or driving with suspended license. 22. Plaintiff backing up under circumstances and/or at location where reasonable person wouldn't have anticipated same or where it was difficult for defendant to see same. 23. Plaintiff not in intersection first. 24. If plaintiff and defendant in intersection at same time, plaintiff was to defendant's left or exceeding speed limit or safe speed or inattentive. 25. Plaintiff makes poor appearance as witness. 26. Plaintiff has verbal difficulty describing events surrounding the accident. 27. Defendant acting as "reasonable person" in the operation of his vehicle including safe speed for conditions and therefore not negligent, i.e., defendant conduct not probable cause of accident. 28. Act of God or unknown person was responsible for accident. 29. No independent witnesses found substantiating plaintiff's version of accident or witness cannot be found (plaintiff, not defendant has legal duty to prove by a "preponderance of the evidence" each element of his case.) 30. Witnesses dispute plaintiff's version of facts or substantiate defendant's version. 31. Investigating police officer makes errors in his report or erroneous conclusions disputing plaintiff's version of accident. 32. Physical evidence (lights, brakes, tires, etc.) was lost and it was necessary to have it examined by an expert to substantiate plaintiff's version of the facts. 33. Plaintiff didn't obtain the services of an expert to substantiate negligence of other parties. 34. Police not summoned to scene inferring minimal or no injury. 35. No request by plaintiff at scene for ambulance. 36. Plaintiff didn't get examined at emergency room day of accident or soon thereafter. 37. No other persons involved in accident had injuries. 38. Plaintiff made errors in recalling his medical and/or employment history to insurance company which can be "discovered" by defense during litigation. 39. No medical opinion substantiating medical causation between accident and plaintiff's medical complaints. 40. Shortly after the incident, plaintiff's physical/health condition returned to what it was immediately prior to the accident. 41. Plaintiff had made prior complaints and received prior treatment to the same areas of his body allegedly injured in the accident and his complaints after the accident hadn't changed. 42. Plaintiff had a subsequent injury which was the cause of continual problems instead of subject accident and no treatment between first and second accidents. 43. Plaintiff exaggerates complaints related to the accident per his medical records. 44. Plaintiff's complaints to doctor were minimal. 45. Plaintiff's complaints to one doctor different from his complaints to other doctor(s). 46. Plaintiff had full range of motion at physical examination. 47. Plaintiff had no complaint of pain at physical examination. 48. Plaintiff observed moving normally while not being examined by doctor. 49. Plaintiff's family doctor had opinion of minimal injuries, did not prescribe physical therapy or any other treatment nor did they give an appointment for plaintiff to return or tell plaintiff to "return in a month if plaintiff experiences pain". Plaintiff did not see doctor again. 50. Plaintiff's injuries totally "subjective", i.e., no indication of injury from x-rays, orthopedic tests or observation. 51. Plaintiff received minimal treatment for minimal time period after accident. 52. Plaintiff had chronic-type complaints per past medical records or has unrelated medical problems such as arthritis or congenital problems such as spondylosis. 53. Plaintiff went to work contrary to his doctor's advice and thereby aggravated his injury and/or caused prolonged period of disability and/or treatment. 54. Plaintiff's doctor did not recommend time off from work yet plaintiff took time off from work. 55. No doctor has stated that plaintiff would lose work time in the future. 56. Plaintiff had poor attendance records at work prior to accident. 57. Plaintiff would have been terminated, on strike, or laid-off even without accident. 58. Plaintiff had no job at the time of accident and can't substantiate that he was applying at various places. 59. Plaintiff's earnings per W-2 and tax records indicate smaller earning history than claimed. 60. Plaintiff paid by cash for prior employment and can't document past earnings and/or has no tax returns. 61. Plaintiff's alleged employer has no official record (i.e., W-2 form) or other means to substantiate plaintiff's employment. 62. Plaintiff lets various "Statute of Limitations" run, thereby foreclosing possibility of recovering anything for his claim. 63. Plaintiff was partially at fault and should recover less under the new Comparative Responsibility schemes in Texas. 64. Plaintiff has history of filing lawsuits for the purpose of collecting compensation. 65. Plaintiff has history of mental illness or emotional problems making him unreliable. 66. Plaintiff made statement to insurance company that he was not injured in the accident.
And...There are hundreds more! It is the insurance adjusters job and duty to seek out and find as many defenses and arguments as possible in your case. He or she will question you carefully.
It all starts when he/she wants to "take your statement".
FAQS About Organ Donation In Texas
What Organs Can Be Donated?
Any organ that medical science can transplant from one person into another may be donated, including the kidney, the liver, the heart, the eyes, and even bone tissue.
Who Pays the Cost of Donating My Organs?
The costs associated with removing donated organs are paid by the organ bank handling the donation, and there is no cost to the family of the organ donor. Organ banks are prohibited by law from paying for organs, and so the donor's family does not receive any payment for the organ donation, either.
Who Will Receive My Donated Organs?
The question of what organs will be accepted, as well as who will receive the donated organs, is determined by the organ bank. Recipients are determined both by medical need and by whether they match the donor's blood and tissue types.
Will My Wish to Donate My Organs Affect the Health Care I Receive?
NO. By law, a person's organs may only be removed after he or she has been declared to be dead, and the doctor who declares you dead cannot be involved with either the removal of your organs or their subsequent transplantation. These legal safeguards insure that the care you receive is never compromised, and that your organs are not removed until after your death.
How Do I Make It Known That I Want to Donate My Organs?
There are several different ways you can make those around you aware that you wish to donate your organs in the event of your death. The first is to sign a "Uniform Donor Card" you can obtain from an organ bank. Keep this card in your wallet, so if you are ever in an accident the hospital will know of your wish. You may also have an attorney prepare a Statement Regarding Anatomical Gifts. Although not required, this legal document makes clear that it is your intent to donate your organs when you die. Perhaps most importantly, make your wishes known to your family and to your doctor.
Can I Change My Mind?
Absolutely. Because a donation of your organs is a gift, you can change your mind about making the gift at any time. If you do change your mind, tear up any documents indicating you wish to donate your organs and tell your family you have changed your mind. Likewise, you can always change your mind back again, later.
CONSUMER PROTECTION IN TEXAS
Most of us know the phrase caveat emptor--let the buyer beware. Although this is good advice, consumers in Texas have legal rights when they purchase products that don't work or services that aren't as they were represented.
Usually, goods and services that you purchase come with a warranty. Sometimes it is a written warranty, outlining what the manufacturer has to do if the product breaks. But even things that you buy that do not come with a written warranty have implied warranties. Whether the product warranty states it or not, goods that you purchase are usually warranted to be fit for their intended purpose. In other words, the blender should blend, the TV should show television stations, and the car should drive. A similar warranty is implied for services, with the person or company who performs the work assuring that it will be performed in a "good and workmanlike" manner.
Sometimes, manufacturers and sellers will try to "disclaim" these warranties, meaning that they refuse to provide any warranty, express or implied, on the goods or services. Although the rules regarding the disclaimer of warranties are complex, and some warranties cannot be waived, the general rule is that a disclaimer of warranties is only effective if the consumer (1) is informed of the waiver, such as by receiving a notice containing the waiver in bold print, and (2) can bargain with the seller or can walk away from the deal. If the disclaimer is not in bold print, or if the consumer is basically forced to take the deal being offered, the seller may not be allowed to disclaim the warranties implied under Texas law.
Texas protects consumers who feel their rights have been violated with the Deceptive Trade Practices Act (DTPA). The DTPA provides a way to bring claims against sellers for breach of warranty and other deceptive business practices (such as rolling back odometers, charging for repairs never made, etc.). If the consumer wins, the DTPA may allow the consumer to recover his or her actual losses, attorney's fees, and up to three times the amount he or she lost.
Just because you are a consumer does not mean that you have to sit and take it. If you think that a seller has taken unfair advantage of you in a transaction, contact our firm. We will be happy to discuss your rights with you.
DECEPTIVE TRADE PRACTICES
Prior to 1973, there wasn't much protection for consumers from deceptive trade practices. The basic presumption was "buyer beware or be ripped off." The Deceptive Trade Practices Act (DTPA) established in 1973 was designed "to protect consumers against false, misleading, and deceptive business practices, unlawful actions, breaches of warranty and to provide effective and economical procedure to secure such protection."
What is the Deceptive Trade Practices Act?
The Deceptive Trade Practices Act lists 24 trade practices that it declares unlawful. Following are a few of the most common.
* Passing off goods or services as those of another;
* Causing confusion or misunderstanding as to the source, sponsorship or certification of goods & services
* Representing that goods are original or new if they are used, deteriorated or reconditioned;
* Advertising goods or services with intent not to sell them as advertised and not supply a reasonable expectable public demand;
* False or misleading statements concerning amounts, price reductions or existence of products
What Amount Can I Recover under the DTPA?
One thing the DTPA offers the consumer, who wins in court, is the recovery of his/her own attorney fees from the offending merchant. The Act also provides more than just actual damages. If the consumer wins a suit he can recover actual damages plus twice the portion of actual damages not exceeding $1,000. If the judge or jury find that the seller knowingly practiced deception, the consumer may be entitled to an amount up to three times the first $1,000 of actual damages, plus three times the actual damages in excess of $1,000. Example: non knowing violation results in: $3,000 + (2 x $1,000) = $5,000. A knowing violation results in (3 x $1,000) + (3 x $2,000) = $9,000.
What Defenses are There to a Claim under the DTPA?
By showing that the false statements were made in reliance upon any of the following a merchant can defend against a DTPA claim by presenting:
* official government records;
* written information provided by another source;
* written information concerning a test required or authorized by a governmental agency.
The merchant must also show that the consumer received written notice of the merchant's reliance of this information before the transaction took place.
What Types of DTPA Cases Will an Attorney Handle?
The Deceptive Trade Practices Act is designed to encourage attorneys to handle relatively small consumer disputes. The attorney's decision to accept a case depends on several conditions:
* likelihood of winning
* amount of work involved
* amount of potential recovery
* likelihood of collecting the judgment if the defendant is in bankruptcy?
Most attorneys will accept a case on a contingency fee basis, which means, the attorney will be paid only if the case is won.
How Can I Help Myself Before Hiring an Attorney?
You must give written notice at least 60 days before filing suit, which includes a statement that the letter is intended as notice prior to filing suit under the DTPA. State the amount of actual damages and expenses claimed, including attorney fees, if any. State the specific complaint regarding the product or service. If the seller sends what you are demanding within 30 days, you are barred from filing suit again for the same claim. Consider carefully what you are demanding so that you don't end up short, but don't inflate the claim, which will reduce the chance of settlement, and make you look greedy if you go to court.
What Relief do Public Agencies Offer?
The Attorney General of Texas has the authority to enforce the DTPA and has set up a Consumer Protection Division to handle complaints. A major limitation is that they only prosecute cases that affect a large number of consumers. However, some cases that affect only a few people are mediated. The Division will attempt to mediate almost any complaint. The Consumer Protection Division can be reached at 1-800-621-0508 or 713-223-5886.
What Legal Rights Do I Have to Protect Me from Deceptive Auto Repair?
The DTPA prohibits knowingly making false or misleading statements of fact concerning the need for parts, replacement or repair service. These rules are vague and seldom obvious when they have been violated. To protect yourself, find a mechanic whom you trust and try to use that mechanic as much as possible. Don't sign blank work order forms and don't give the mechanic a check and later stop payment. He can repossess the car and then prosecute you for theft of service. A mechanic who performs work has a possessory lien, which allows him to keep the car until the bill is paid. After 60 days the mechanic can even sell the car to recoup his expenses. If this happens to you, pay the bill with a check and tell the mechanic that your payment is being made "under protest" write the protest statement clearly and in a conspicuous place on the check. You can then sue to recover any unfair change.
The DTPA has accomplished a great deal to aid the consumer in getting fair treatment and at little expense to the taxpayer. In fact the DTPA has been so effective that some business interests spend millions of dollars lobbying the Texas Legislature to make it ineffective with amendments. Since representatives for the public interest will never have the dollar power to fight these big businesses, it is up to consumer to voter. Individuals can have a major influence with their representatives. Write them and let them know you are aware of the issues.
CONTACT US FOR A CONSULTATION Phone: (713) 501-4815 / Email: jvp1000@aol.com