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Winning the Case That Appears Unwinnable: Part 2

Winning the Case That Appears Unwinnable: Part 2

 Posted by:    Jun 03, 2011  


The bad facts of this next case caused several law firms to turn it away as un-winnable before WE took it and won. This injury was caused during a two car motor vehicle collision. While the vehicle driven by the at-fault party had insurance, the insurance company refused to defend the driver (or pay for the damage she caused) because the driver left for parts unknown days after the crash, never to be heard from again.

The driver was not the owner of the vehicle; he had borrowed the car. But without actually being able to serve the lawsuit on the driver, the insurance company was not willing to pay the claim. The insurance company was betting that no law firm would take the case without any hope of insurance company money to defend the driver. They were gambling, because in most cases, if you can't locate the driver, you can't initiate a lawsuit.

Most firms viewed the case as a non-starter. The insurance on the car won't defend the missing driver. The law didn't permit us to get a judgment in absentia because, without actually finding and serving a lawsuit on this driver, the case can't go forward. Even though our client had uninsured motorist coverage, the coverage was useless because, technically, the vehicle and the driver were insured. So was this injury victim out of luck? Most law firms thought so.

PROBLEM SOLVING:

We looked at this case differently. It seemed to us that the ONLY way our client would get insurance coverage for the injuries she sustained would be to bring a lawsuit against the owner of the vehicle who loaned the car to the negligent driver. That's right--a lawsuit against the owner but not the driver.

Normally, simply loaning your car to someone is not actionable. To bring a lawsuit against an owner of a car, you have to show that loaning the car was, in and of itself, negligent. Typically, an owner is not going to be held liable for loaning a car to a negligent driver, unless the act, at the time of the loaning, would be considered irresponsible. These claims against owners of vehicles, solely based on negligent entrustment of a vehicle, are rarely successful.

Why? Because whenever a jury is considering the relative fault of the players in a crash, the person who lent the car is far down the list of responsible parties. Between the loaner of the vehicle and the at-fault driver, the driver is usually considered 95% responsible, or more. It is important to recognize this divvying up of fault, because that same percentage of responsibility also applies to how much each Defendant has to pay. Keep in mind, there are very few occasions where it will be possible to prove that the owner of a vehicle should have known that by loaning his car out, a crash was likely to occur.

So, why did we take the case? Well, what wasn't considered by any other law firm was that the at-fault driver was just under 16 years old at the time and didn't even have a learner's permit. Due to confusion at the scene, the police never inquired as to the driver's age, nor did they issue her a ticket for the crash. We took the case and sued the owner of the vehicle, a 19 year old at the time of the crash. That created the obligation for the insurance to have to defend this case. Not only did the insurance company now have to hire an attorney, but to the extent that we convinced a jury of the owner's comparative fault, the insurance would have to cut a check for the owner's degree of fault.

But we still had 2 huge proof problems: 1) we had to establish that the owner knew of the age and driving inexperience of the driver at the time he loaned his car to her and 2) we had to convince the jury that loaning the car was as bad, or worse, than actually being the negligent driver.

The 1st proof problem, if not handled correctly, gets our case thrown out of court entirely. The 2 nd proof problem keeps us in court through a jury deliberation, but if they find the relative fault of the owner to be very little or none, it would mean little to none of my client's injuries, medical bills or permanency would be compensated. In such a case, the jury first figures out the total damages to a plaintiff. Then, when they determine the relative fault, they are only permitted to apportion damages according to the percentage of fault that they attribute to the defendant. So, if the jury finds my client had $50,000 of losses from the crash, but find the owner to only be 5% responsible for loaning the car (while the actual driver is 95% responsible), plaintiff would recover only $2,500 (5% of $50,000).

1) Solving For Proof Problem #1:

Proof problem #1 became apparent when we took the deposition of the now 22 year old owner of the vehicle. He admitted after a couple of hours of questioning that he was 19 years old at the time and was the boyfriend of the 15 year old who borrowed his car. He also admitted that he knew she was not 16 years of age at the time and that he was aware that she didn't have a license or even a learner's permit at the time of the crash. Proof problem #1 was solved after the deposition. Clearly, he knew that this 15 year old was not qualified to drive his car at the time he loaned it.

2) Solving For Proof Problem #2:

Next, proof problem #2 had to be addressed. The insurance company assumed that even if the owner admitted that he shouldn't have loaned the underage driver the car, the jury would still place the majority of the blame on the driver.

We correctly anticipated that the insurance company would try to confuse the jury by arguing that we should have, but didn't, sue the driver.

So before they had a chance to make their point, we made sure the jury knew that no one could find the driver, and the owner is the only one left to pursue. They were also hoping to argue that we should simply sue the driver in the future (if she was found). Therefore, I also made sure the jury knew that the statute of limitations had passed and that the ONLY recovery our client was ever going to see was from this defendant.

3) Focusing Our Jury Message:

We focused every message during jury trial on the personal responsibility that adults with driving privileges have versus unlicensed children. Our theme was personal responsibility. We made sure that the jury was filled with current or former military personnel (the trial was in Colorado Springs, so military personnel availability was not a problem). We wanted people on the jury who would not tolerate young people trying to shirk responsibility. We continued to reinforce how dangerous the community would be if owners could simply let a 15 year old (or even a 12 year old or even a toddler) driver a car without consequence.

4) Justice Prevailed:

The jury took 2 days to deliberate and reach a verdict. Ultimately, they found a reasonable level of total damages and found the owner 59% at fault for the occurrence of the crash. This is truly the only case of which we are aware where a driver was held less responsible for a crash than the owner lending the vehicle. The client was quite happy given the complex nature of the case to recover 59% of her losses, as opposed to zero had she accepted the hopeless answers given to her by the first couple attorneys she asked to help her with her case.

At Anderson, Hemmat & McQuinn L.L.C., we believe that just because another law firm has turned away a case, this doesn't mean that there is no case. That's why when you call our firm you will be able to speak directly with an attorney and get a thorough evaluation of your claim. If you have a case that other firms have turned away, call us today and get a second opinion.









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