In court, victim/plaintiffs must establish negligence by a preponderance of the evidence, or more likely than not. However, that’s only the minimum requirement. The victim/plaintiff’s evidence must also be strong enough to withstand any common insurance company defenses. Some of the more common defenses are outlined below.
A stitch in time usually saves nine. If a St. Louis personal injury attorney works a little harder during the evidence-gathering process, it’s much easier for a lawyer to refute defenses in court. In other words, if lawyers do their homework, they usually get good results on the test. These good results mean fair compensation for your serious injuries.
Comparative fault is probably the most common insurance company defense in motorcycle wreck and all other vehicle collision claims. This legal loophole shifts blame for the accident from the tortfeasor (negligent driver) to the victim.
For example, the insurance company might admit that its insured person made an illegal turn, but then blame the accident on the rider’s excessive speed.
Significantly, contributory negligence is an affirmative defense. The insurance company must admit negligence to use it. So, the insurance company proves the victim’s case for the victim. However, that doesn’t mean evidence is unnecessary.
An attorney must emphasize the tortfeasor’s negligence as the cause of the accident. Let’s return to the illegal turn/speeding example. There’s a big difference between speeding at 5mph over the limit and speeding at 15mph over the limit. Low speed violations normally don’t substantially contribute to crashes.
This approach is important because Missouri is a pure comparative fault state. Even if the victim was 99 percent responsible for the wreck, the tortfeasor is still liable for a proportionate share of damages.
The Motorcycle Helmet Defense
This doctrine was already complex in Missouri. The Legislature’s modification of the helmet law made it even more complex. As of August 2020, the mandatory helmet law only applies to riders over 26. As a result, the helmet defense only applies in certain situations.
In the Show Me State, the motorcycle helmet defense is a lot like contributory negligence. Insurance companies can use helmet non-use to reduce compensation if:
- An expert testifies that the failure to wear a helmet, instead of the tortfeasor’s negligence, caused the victim’s injuries, and
- The trier of fact (judge or jury) accepts the expert’s conclusions.
So, to use this defense, insurance companies must do more than cite safety statistics and wag their fingers. They must produce compelling evidence on critical points.
The Motorcycle Prejudice
This final defense, which is not found in a book of law, often enhances contributory negligence. Many jurors believe that riders are reckless thugs. Therefore, these jurors are more likely to accept defenses like contributory negligence. They’re more willing to blame riders for these accidents.
It’s very difficult to undermine any prejudice. The emotional feelings are too strong. So, to combat the motorcycle prejudice, an attorney often makes the victim an exception to the rule. In other words, it’s okay for jurors to think most bikers are Hell’s Angels, as long as they think Mike is an exception to this rule.
Insurance companies often pull out all the stops in motorcycle crash claims. For a free consultation with an experienced personal injury attorney in St. Louis, contact Schultz & Myers, Personal Injury Lawyers. Attorneys can connect victims with doctors, even if they have no insurance or money.