Plaintiff Duties in Personal Lines Claims
November 2011
We often focus on the duties
of the insured, the insurer, and the claim professional;
however, the plaintiff has the burden of proof in casualty
claims when asserting that damages have been sustained. While
the defendant is responsible for compensating the plaintiff, it
is up to the plaintiff to prove the actual damages and that they
were proximately caused by the defendant's negligence.
By
Elise Farnham
Illumine
Consulting
The plaintiff must submit evidentiary proof as the jury is
not required to imagine or conjure the damages. If the plaintiff
fails to provide evidence of damages, the case will be
dismissed. In fact, the failure of the plaintiff to establish
damages with certainty requires a dismissal of the cause of
action.
Rule of Certainty
In the event the plaintiff's damages extend beyond the trial,
the courts have relaxed the rule of certainty somewhat. The
plaintiff still has the burden of proof to establish future
damages, including that future losses will be sustained, and the
actual value of those losses. Regarding losses already
sustained, the rule of certainty is applied.
Lost Opportunity
When considering allegations of damages for time lost from
work, the plaintiff must prove to the jury that there was a
sufficient disability to preclude the ability to work, that the
plaintiff was actually employed and did not work. This makes
allegations of a lost economic opportunity problematic for the
plaintiff.
A lost opportunity is difficult to prove. The plaintiff must
prove that the opportunity actually existed, that his or her
medical condition was such that the plaintiff was unable to take
advantage of the opportunity, and that the plaintiff would have
profited by this opportunity and the amount of the profit. That
makes for a lot to prove. Testimony speculating as to the amount
of the lost profit due to the lost opportunity will not be
allowed and will not meet the legal requirements.
Proximate Cause
The plaintiff must also prove that the defendant's negligence
was the proximate cause of the damages. If alleging injuries,
the plaintiff must prove that the defendant's tortious act
caused the injuries. The plaintiff must also show that there is
a chain of events that led directly from the defendant's actions
to the injuries—whether property damage or bodily injury. The
medical testimony offered to support proximate cause must have
some basis in medical fact or experience.
Mitigating Factors
The plaintiff is required to mitigate the damages. The courts
will not allow the plaintiff to recover for any damages that
result after the accident from the plaintiff's failure to take
due care in preventing further damage. For instance, in property
damage auto cases, this means that the plaintiff must make every
effort to effect repairs and prevent further damages due to the
costs of car rental expenses. With property damage to a
structure, if the plaintiff owns the building, he or she must
make an effort to board up the building or cover it to prevent
further damage from the weather or entry by thieves.
In personal injury cases, the plaintiff must take care of the
injury. The plaintiff's failure to do so will preclude
responsibility on the part of the defendant for the entire
injury. In our
earlier example in which the plaintiff took due
care to enlist the services of a qualified physician and the
physician failed in his or her responsibilities, then the
plaintiff will not be charged with failing to take reasonable
care.
Reasonable Care
The courts have found that the concept of the treating
physician not taking reasonable care of the patient is a
foreseeable consequence of an accidental injury by a negligent
party, and therefore, the malpractice is not charged against the
injured person. However, there is now joint tortfeasor status of
the physician and the defendant for the additional harm and
additional damages as a result of the malpractice.
There are some specific instances in which the defendant is
not held responsible. These include:
- The failure of the injured person to
receive timely medical treatment
- The failure to follow the advice or
instructions of the treating physician
- The failure to exercise reasonable
care in the selection of a physician
- Any other factors that impair
recovery that are not the natural, direct, and
proximate consequences of the tort
In other words, the defendant is not liable for the avoidable
consequences of the injury brought about by the plaintiff's own
failure to exercise reasonable care.
Since the plaintiff has
a duty of reasonable care, the defendant is required to pay for
expenses associated with reasonable measures taken to mitigate
and minimize the damages. This would include expenses associated
with damaged clothing while trying to rescue people from a
burning building, costs associated with attempting to salvage
valuable property, costs associated with evacuating an area
following a pollution exposure or spill, etc. Even if the effort
fails and damages are not lessened, these costs are valid
damages. The test is whether the plaintiff took reasonable
actions under the circumstances surrounding the event, not
whether damages were reduced.
We occasionally see cases in
which the physician has suggested surgery, but the plaintiff
refuses to submit to an operation. If, in the opinion of the
surgeon, the operation will cure the plaintiff's condition, and
there is not great risk, by refusing the procedure, the
plaintiff is considered negligent in his or her own care and may
not recover damages as a result of the refusal to have the
procedure. However, if the physician has recommended an
operation that may cure the plaintiff, but the procedure carries
great risk, and there is no guarantee of success, the plaintiff
may refuse the surgery. In those circumstances, there is no
negligent care on the part of the plaintiff.
The defendant is
not responsible for the avoidable consequences of the injury. If
an operation will avoid further disability, the defendant is not
responsible for the disability caused by the plaintiff's failure
to take advantage of the surgical procedure. In that case, there
must be convincing evidence that the medical procedure will be
successful, will actually cure or reduce the plaintiff's
disability, and will not expose the plaintiff to unreasonable
risk.
The determining factors are weighed against what is
reasonable. This word is often used in considering the
consequences of actions, analyzing events, and the understanding
of the occurrence. "Reasonable" is whatever the jury believes is
reasonable under the circumstances and considering the
consequences.
Religious Beliefs and Medical Care
Evaluating mitigation of damages in light of religious beliefs
can be difficult. The plaintiff's religious beliefs do not
relieve the plaintiff from the duty of exercising reasonable
care to be cured by using all medical means available. Some
religions believe that ailments, diseases, pain, and suffering
are false beliefs or illusions, or that God will effect a cure
if he believes it is the right thing to do for this person.
There is no proof that these beliefs have any basis in fact.
Therefore, these believers are held at the same standard as any
plaintiff.
Similarly, if a person allows an unreasonable
amount of time to pass before getting treatment or refuses
reasonable and recommended treatment by a reputable physician,
then this failure is considered an intervening incident,
exacerbating the injury and lengthening or even resulting in
disability that could have been avoided.
Since the failure to
receive appropriate care is an avoidable consequence of the
original injury, the defendant is not liable. The plaintiff will
be responsible for any outcomes, no matter how negative;
religious belief will not erase the personal negligence in not
obtaining appropriate care.
Children of parents with these
religious beliefs pose a special case. The children are treated
at the direction of the parents and are not of an age to elect
their own treatment. In those cases, the parent's negligence is
not imputed to the child, and the defendant will be responsible
for the full extent of damages.
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