Do I have a case?
Whether you were involved in a motorcycle collision, a car crash, or injured in some other way, there is a simple test, sometimes called the “three-legged chair” test, that plaintiff’s attorneys use to evaluate whether you have a case.
You most likely have a viable lawsuit if there is:
- Damages, and
- A source of recovery.
Like a chair with three legs, your case is likely to fail if you are missing one of these key elements of any personal injury lawsuit.
So how do you know if you have a case? Below, we will look at each of the “chair legs” of a valid personal injury lawsuit and how to evaluate them.
Do You Have a Case After a Motorcycle Crash? Can You Prove Liability?
If you are going to make a claim against another driver’s insurance company or file a lawsuit against the driver when their insurance company refuses to pay, you must be ready to prove that the other driver was liable for the crash.
Liability means that your injuries were caused by the other person; therefore, they are responsible financially. Before making a demand for payment or filing a lawsuit for damages based on your motorcycle crash, we must gather the evidence that we need to prove liability. This could mean:
- Witness testimony (including your own testimony),
- Video evidence,
- Police reports,
- Expert testimony (for example, an accident reconstructionist’s report), or
- Any admissible evidence that shows the other driver was at fault for the collision.
What Do You Have to Prove to Establish Liability?
Depending on the facts of the case, you may need to prove:
- Negligence – “simple” negligence is enough for the other driver to be liable for the crash – you will need to prove that they 1) owed a duty of care (to follow the traffic laws and to maintain a proper lookout, for example), 2) that they breached their duty of care (by not stopping at the traffic light or not looking before making that left turn, for example), and 3) their actions (or failure to act) was the proximate cause of your injuries.
- Strict liability – if a motorcycle crash is caused by a defective part (brakes, tires, cables, for example), the manufacturer or seller of the part may be strictly liable for their product and you will not need to prove negligence.
- Gross negligence – if you can prove that the other driver’s actions showed a reckless disregard for the safety of others, you may be entitled to recover punitive damages.
- Intentional conduct – when a person intentionally harms you (a physical assault or road rage incident, for example), you may be entitled to punitive damages with no statutory cap on the amount of damages that can be awarded.
What if I was at Fault?
If you were at fault in the motorcycle collision, 1) you cannot recover from the other driver, and 2) the other driver may file a lawsuit against you or make a claim against your insurance company.
Depending on the types of insurance you purchased, you may still be able to recover compensation from your PIP/Medpay insurance, medical insurance, disability insurance, or an umbrella policy, but you cannot recover from the other driver.
You Don’t Have a Case Unless You Can Prove Damages
The second “leg” in the three-legged chair is damages.
If the other driver was at fault, and you can prove it, you still do not have a case unless you suffered a loss – property damage to your motorcycle, injuries that required treatment, or some type of financial loss.
Depending on the facts of your case, your damages could include:
- Both economic and non-economic damages,
- Motorcycle repair or replacement and other property damage,
- Medical expenses,
- Lost wages,
- Pain and suffering,
- Mental anguish,
- Loss of consortium,
- Wrongful death damages, and
- Punitive damages.
How do you prove damages?
Depending on the stage of your case (for example, whether we are providing evidence to the insurance company along with a demand for payment or presenting evidence to a jury at trial), your proof of damages may include:
- Your medical records from the ER, hospital, or doctor’s visits,
- Billing records and invoices that document your expenses,
- Photographs or video evidence of your injuries and how they have affected you,
- Medical testimony by your doctor or an expert witness,
- Your own testimony about the injuries and how they have affected you,
- Testimony by family members about your injuries and how they have affected you,
- Reports prepared by expert consultants, or
- Expert witness testimony by a life care planner, vocational rehabilitation expert, mental health expert, economist, or medical expert.
In Most Cases, You Must Identify a Source of Recovery Before Filing a Lawsuit
What if a reckless driver forces you off the road, and you are hospitalized after the crash, but the other driver can’t be found, or they have no insurance?
There must be a source of recovery to justify the expense of filing a lawsuit – attorney fees, filing fees, deposition costs, and the costs for any experts who are necessary for consultation or testimony.
Your motorcycle crash attorney at the Boles Law Firm will investigate your crash to identify all possible sources of recovery, which could include:
- The other driver’s insurance policies or personal assets,
- Other responsible parties’ insurance policies, personal assets, or business assets,
- A corporation’s assets if they are liable for the crash,
- Municipalities when an crash is caused by poor road conditions that the responsible government agency failed to repair, or
- Your own insurance policies.
In many cases, there will be a source of recovery that justifies making a claim or filing a lawsuit, although it may not always be sufficient to pay your total damages – for example, when the other driver has an insurance policy with the minimum policy limits, and they have no personal assets.
In some cases, there may not be any source of recovery – for example, in a defamation case where the potential defendant has no assets or insurance policy that would pay a settlement or verdict, and their actions can’t be attributed to their employer or a business with assets.
In other cases, there may be a source of recovery, but the potential recovery is not enough to justify the costs of a lawsuit – for example, in a medical malpractice case where the total damages are not enough to pay for the costs of the expert witnesses that must be retained to prove your case.
What if the Other Driver Doesn’t Have Insurance or They Can’t Be Found?
When the other driver doesn’t have insurance, doesn’t have enough insurance to cover your damages, or fled the scene and cannot be located, you may have other options including:
- Third-party defendants – there may be another driver, business, or municipality who is liable for your crash,
- Your uninsured motorist coverage – your own SC insurance policy includes mandatory uninsured motorist coverage that will compensate you up to the policy limits that you purchased if an at-fault driver is uninsured or cannot be located,
- Your underinsured motorist coverage – it’s not mandatory, but, if you purchased underinsured motorist coverage, it will pay the difference when your damages exceed the other driver’s policy limits,
- Stacking policies – if you have multiple insurance policies, you may be able to stack coverage until the policies limits are exhausted,
- PIP/Medpay insurance – if you purchased PIP coverage, it will pay your medical expenses up to the limits that you purchased, or
- Umbrella policies – you may be able to tap into your own or the other driver’s umbrella policies that provide additional coverage above the liability policy’s limits.
Motorcycle Crash Lawyers in Charleston, SC
Charleston personal injury lawyer Dan Boles devotes a significant amount of his time to helping injured motorcyclists and has the experience that you need to investigate your motorcycle crash, negotiate with difficult insurance carriers, and try your case to a jury if you aren’t paid the full and fair value of your claim.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website.