Feb 10, 2014

Picture a quiet little residential street. Imagine a car heading down the street. The posted speed limit is 25 mph, and the texting driver is going 35 mph. Suddenly, the driver notices a ball rolling into the street. An instant later, the driver notices a small child chasing after the ball. The driver has no time to slam on the brakes. Instead, the driver turns the steering wheel hard to the left and barely misses hitting the young child. The driver loses control of the vehicle and the texting driver crashes through a porch into the front room of a neighboring house.

At first, it seems clear as day that the texting driver was responsible for the car crash because he was speeding, texting, and could have avoided the entire situation if he or she had been paying more attention. The driver was negligent and now there is a car in the family room with tens of thousands of dollars' worth of damage to the homeowner. It is a no-brainer that the negligent driver's insurance should step forward and pay for the damage, right? Surprisingly, up until a few months ago, under these exact circumstances, the insurance company for the texting driver would have sent a denial letter to the homeowner.

The insurance company would deny this claim based on a Colorado law that dates back to 1960 known as the sudden emergency doctrine. This doctrine holds that a person who is placed in a sudden emergency (in this case, reacting to a child running into the street) is not negligent if that person exercises the degree of care that a reasonably careful person would have exercised under the same or similar circumstances. It was a complete defense in the law, meaning that if a jury believed that the driver was faced with a sudden emergency, the plaintiff would be awarded nothing. While it certainly could be argued that speeding and texting are not what a reasonably careful driver would be doing, jerking the steering wheel and crashing into a house to avoid killing a child could otherwise be considered an appropriate reaction to a sudden emergency.

Not surprisingly, over the last 50 years, insurance companies blatantly abused the spirit of the sudden emergency doctrine by improperly stretching it to cover situations that were not emergencies. For example, a person driving on a snowy, wintery day comes across an icy patch of highway and ends up losing control of his vehicle and crashing into another car. Insurance companies tried to claim that the driver in this situation was not negligent even though the negligent driver was fully aware of the snowy and icy conditions and should have been driving more carefully.

On many occasions, persuasive insurance defense attorneys were able to convince juries to award nothing to injured plaintiffs under circumstances as crazy as a driver reacting to a squirrel crossing the road or a diabetic who lost consciousness while driving because of his failure to properly manage his blood sugar. Basically, anytime a defendant had an excuse for his or her poor driving, no matter how ludicrous the excuse, the sudden emergency doctrine was put forward by the insurance companies as a defense. Eventually, the sudden emergency doctrine ended up being so watered down by devious insurance defense attorneys that it lost its original intent.

Fortunately, in early 2013, Colorado became a much more pleasant place. The Colorado Supreme Court abolished the sudden emergency defense in a case called Bedor v. Johnson. Our Colorado Supreme Court determined that there is no good reason to give insurance companies another way to avoid liability through the sudden emergency defense. Instead, the Colorado Supreme Court decided that a jury can simply determine whether or not the conduct of the driver was negligent without the confusion and red tape created by the sudden emergency doctrine. I think we can squarely point the finger at the insurance companies and their abuse of this doctrine for the abolishment of this defense. This recent change in the law is truly a welcome breath of fresh air.

At Anderson Hemmat, we know the law is always changing. We keep up to date as the law changes so that we can best represent you in your personal injury claim. Call our Colorado law firm today for a free personal injury consultation.


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