The “Smoking Gun” That Forced The Insurance Company to Pay
As a litigator and trial attorney, it is imperative to look under every rock for any piece of evidence that can help your client. If your instinct tells you the other side is lying, then get out there and find the evidence to prove it. Instincts are not admissible at trial. Evidence is required.
A couple of years ago, we had a large case that looked completely unwinnable because our client rear-ended another car on a local highway. But we followed our instincts and found the elusive piece of evidence that proved our client was telling the truth and the opposing driver’s negligence was the cause of the accident.
His Car Broke Down. She Had No Time to React.
Our client, “Jane Doe” was driving home at approximately midnight following her shift at a local restaurant when, out of nowhere, a vehicle driven by “Tom Smith” was inexplicably stopped in the middle of the highway approximately 50 feet in front of her. Because the vehicle’s brake lights were not on, Jane did not see the vehicle until it was too late, and a huge crash occurred sending Jane, Tom and Tom’s two passengers from the back seat to the hospital. It turns out that Tom was driving for a ride-sharing app and the two passengers were his fares.
Jane suffered an open or compound leg fracture (the bone had been fractured and broken through the skin) that required emergency surgery. One of Tom’s passengers suffered an equally devastating injury and the other passenger required medical treatment for several months but did not suffer life-altering injuries. Tom was knocked unconscious and woke up at the hospital but was otherwise fine.
The Car Accident Report Damages Client’s Claim
Following the accident, the local law enforcement officer tasked with investigating the accident never spoke to Jane (she was in surgery and recovering in the days following the accident) and determined that she was the cause of the accident because she rear-ended Tom. In Florida, there is a rebuttal presumption of negligence that the rear-ending vehicle is at fault for the accident. On its face, the case was pretty open and shut. However, the truth in this case ended up being far different.
After being turned down by many well-known law firms, Jane was referred to us and we accepted her case. At that time, Jane’s foot was pointing at a 90-degree angle as she was unable to have a follow-up surgery without health insurance or an attorney to convince a doctor to operate on a Letter of Protection. We found a local board-certified foot surgeon who understood the magnitude of Jane’s injury and agreed to operate on her under a Letter of Protection (meaning he would not get paid until the case was over).
We Believed Our Client And Went to Work
The case was already deep into litigation when we accepted the case. Shortly after we became involved, the case went to mediation where the insurance company for the ride-sharing app paid the passengers from Tom’s vehicle a significant seven-figure sum from their Uninsured Motorist Limits (the insurance coverage that covered the passengers if someone other than Tom caused the accident, i.e. Jane). The insurance company for the ride-sharing app took the position that Jane was entirely at fault and refused to offer her any money despite her devastating injuries and testimony regarding Tom’s vehicle lacking any lights in the middle of the highway at midnight. So, we got to work.
In litigation, Tom testified that he had stopped for traffic prior to being rear-ended. Tom’s passengers recollected, albeit a bit hazy due to their injuries, that Tom might have suffered a mechanical failure and failed to pull over to the side of road allowing the car to stop in the middle of the highway. The passengers had been knocked unconscious, so their recollections were not accepted by the insurance company.
We consulted with an expert who testified that a vehicle driving at average highway speed that suffered mechanical failure would have approximately 45-60 seconds to pull over. We believed Jane when she said that there was no traffic that night and that Tom’s vehicle had no lights on which is why Jane did not see the vehicle until it was too late. We believed Tom did not make an effort to pull over as is required and allowed his vehicle to stop in the middle of the highway in the middle of the night and then attempted to restart his vehicle, which would explain the lack of lights. So, with the belief and instinct that the truth was out there somewhere, we had to find that piece of evidence that would win our trial (or convince the insurance company to pay full value for Jane’s significant injuries).
The “Smoking Gun”
One of the theories in the case was that Tom called 911 to report the mechanical failure. He had denied calling 911 and claimed he stopped for traffic (at midnight?). However, because we were retained approximately one year following the accident, there would be no audio record of any 911 call. While the audio would have been ideal, we still needed proof of the call if it existed. One would think that it would be easy to find a record of a 911 call but after months of contacting multiple governmental agencies, nobody was quite sure where to send me to find record of the call. Finally, after sending out letters to a dozen or so agencies, we received an email with a document that had numerous redactions. This was the document that proved Tom had called 911 on the night of the accident! While we could never know what was said in that call, we at least know he made the call. This was the key to the case!
Remember, Tom had testified that (a) he stopped for traffic; (b) had not called 911 and (c) had been knocked unconscious and did not wake up until he was already in the hospital. That means that Tom obviously lied about calling 911 but more importantly, he would then have to testify that he called 911 to report traffic because he could not have called 911 to report the accident because he was unconscious. Calling 911 to report traffic was not believable; nobody calls 911 to report traffic. Tom clearly called 911 after suffering a mechanical failure and failing to pull over to the side of the road. It was clear that, despite having ample time (approximately one minute) to pull to the side of the road, Tom allowed the vehicle to park in the middle of the highway at midnight. All drivers have a duty to act reasonably. Not pulling over to the side of the road is not a reasonable action. His vehicle broke down, his brake lights were off and Jane did not see him until it was too late. Tom was the negligent party in this accident.
Hiring JB Injury Law Pays
After we were able to produce evidence of the 911 call along with the new version of events that placed the blame for the accident at Tom’s feet, the insurance company cut a very large check from their Bodily Injury Coverage (the insurance coverage for Tom’s negligent driving). In our approximate 15 years of practice in the personal injury field, this is the only case that we have seen where an insurance company paid significant money from both the UM and BI portions of their policy. They had paid from the UM coverage at mediation to Tom’s passengers because they believed Tom when he said he stopped for traffic. They did not believe Jane. In this case, we gave them no choice. The evidence forced the insurance company to pay a significant sum to satisfy Jane’s demands.
In summary, follow your instincts; find the evidence.