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Personal Lines Claims

Plaintiff Duties in Personal Lines Claims

Elise Farnham | November 1, 2011

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Justice scale, gavel, and books

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.

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. If 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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