Affirmative defenses are ways that insurance companies and respondents try to fight against personal injury claims by showing that even though they may have been negligent or committed the act they are being sued for, they should not be held solely responsible for the injuries that may have been sustained. Many times they blame the plaintiff for some sort of contributory negligence, and they may say the plaintiff assumed the risk of the activity they were partaking in. They may argue that the plaintiff’s bills have already been paid for by insurance. That is an affirmative defense that the collateral source rules, meaning that even if they do lose, they should not have to pay any of these bills because they were already paid by some other collateral source. Affirmative defenses are used in personal injury cases to try to limit the recovery of a plaintiff. A Clearwater personal injury lawyer can help you defend your claim against these defenses to work toward receiving compensation for your injuries.
Assumption of Risk
An example of assumption of risk is when an individual sets foot on a football field to play, tries to tackle somebody, and breaks their neck. The individual assumes that risk by deciding to partake in a game of football knowing that they could be injured while playing a contact sport like football. The injured person is not allowed to sue the person they tried to tackle, because they assumed that risk by deciding to participate in the game of football.
Defending Against an Affirmative Defense
Depending on the affirmative defense, many times the personal injury lawyer can file motions to dismiss affirmative defenses if they just apply to the case, or if the defense argues some sort of affirmative defense like contributory negligence. Often, the personal injury lawyer can get an accident reconstructionist or some kind of expert who can show that the plaintiff was not at all negligent in the accident and they did not contribute at all to the injuries they sustained.
Many times the plaintiff and their personal injury lawyer will have to fight these affirmative defenses with experts or other evidence to disapprove them. This is very similar to what the defense does against the plaintiff’s causes of actions or counts in the complaint for which they are suing the defendant.
Hiring a Personal Injury Lawyer
Affirmative defenses and other procedural rules that are legislated are rules written by lawyers, understood by lawyers, and argued about by lawyers. When an individual does not have a lawyer and there are procedures and rules that they do not understand, they are at a major disadvantage against the insurance company that has a team of lawyers fighting for them.