Insurance companies have the right to expect individuals to take reasonable steps to “mitigate their damages,” or keep them to a minimum as much as possible. If there is evidence showing that a claimant failed to mitigate their damages, such as by delaying medical care or ignoring their doctor’s recommendations, this could provide a reason for the insurer to reduce their financial settlement. Make sure to speak with an experienced personal injury lawyer in San Antonio.
What Is the Duty to Mitigate Damages?
In a personal injury legal context, plaintiffs or accident victims have a duty to mitigate their own damages and losses. When a harmful accident such as a car crash occurs, a victim is expected to take proactive steps to try to minimize the harm suffered as much as possible. If you were involved in an accident, make sure to speak with an experienced car accident attorney in San Antonio.
Reasonable steps may include:
- Getting medical care without unnecessary delays.
- Attending all recommended appointments with doctors and specialists.
- Taking any prescribed medications.
- Using prescribed medical devices, such as crutches or a sling.
- Complying with activity or work restrictions/limitations.
- Avoiding high-risk physical activities.
- Returning to work or finding alternate employment when medically cleared to do so.
- Having vehicle damage taken care of promptly to prevent additional issues.
Any actions that a reasonably prudent person would likely take to try to lessen the physical and financial burden of an accident will generally be expected of a plaintiff. If there is evidence that a victim is doing something that goes against this goal, it can lead to the “failure to mitigate damages” defense.
How Does Comparative Fault Work in Texas?
Failure to mitigate damages is a usable defense that, if asserted, could reduce the amount of compensation available to an accident victim. It will not, however, prevent the individual from receiving a settlement entirely. Since failure to mitigate did not cause the original injury or harm, the victim can still be eligible for financial compensation.
However, under Texas’s comparative fault law, the failure to mitigate defense could reduce the victim’s payout by a certain percentage. If a plaintiff is found to be 10 percent responsible for the extent of his or her losses, this would reduce a $100,000 settlement by a matching 10 percent to $90,000.
Texas is a modified comparative negligence state, where there is a cap on the amount that a plaintiff can be found at fault for an injury and still recover compensation from a defendant. This cap or limit is set at 51 percent. As long as the plaintiff is found to be 50 percent or less responsible for an injury, he or she will still be eligible for partial financial compensation.
How Can a Lawyer Help With the Failure to Mitigate Defense?
If you are involved in a personal injury claim where an insurance company is attempting to reduce your payout based on the failure to mitigate damages defense, it is imperative to contact an attorney for assistance. An attorney can combat this argument with evidence that you did what was reasonable and appropriate to reduce your losses based on your circumstances.
Hiring a personal injury lawyer from the beginning of your claim is best, as an attorney can guide you to the steps you should be taking to mitigate your damages as much as possible – protecting your financial recovery as a result. However, using an attorney at any stage of your personal injury claim can be beneficial to your overall recovery.