Insurance companies often raise allegations of failure to mitigate damages in a personal injury case. The defense of failure to mitigate damages is a valid legal theory that can reduce the amount of money a person receives in a personal injury claim. Unfortunately, some insurance companies use this defense as a tactic to undervalue valid claims.
If an insurance adjuster says they lowered your settlement amount because of your failure to mitigate damages, don’t accept the settlement offer. Call an experienced Dallas personal injury lawyer immediately. Also, do not provide further statements or recorded conversations without legal advice.
What Is the Duty To Mitigate Damages After a Personal Injury?
The duty to mitigate damages refers to your obligation to take reasonable steps to avoid worsening your injuries, losses, and damages. All parties injured by another person or entity have a duty to mitigate damages. However, that does not mean you must use excessive means to reduce damages.
The duty to mitigate damages is based on what a “reasonable person” of ordinary care and prudence would do.
Examples of reasonable steps a person might take to mitigate damages include, but are not limited to:
- Seeking prompt medical treatment
- Following your doctor’s treatment plan
- Seeking a prompt second opinion if you disagree with your physician’s evaluation of your condition or treatment plan
- Attending and participating in physical therapy, occupation therapy, and other rehabilitation sessions
- Taking medications on time and in the correct dosage
Prompt medical treatment (mitigation) after an accident increases your chance of recovering quickly. You may also reach maximum medical improvement with no impairments. In other words, you make a speedy, full recovery by taking reasonable steps regarding your health care after an accident or personal injury.
What Happens If I Breach My Duty To Mitigate Damages?
The mitigation of damages doctrine is also known as the “doctrine of avoidable consequences.” The doctrine prevents an injured party from receiving compensation for damages that could have been avoided with reasonable measures.
For example, suppose you were injured in a car crash and broke your leg. You followed the recommendations of the orthopedic surgeon and had surgery.
As part of the recovery treatment plan, your doctor advised you to attend physical therapy sessions three times per week for six weeks. Your doctor informed you that without physical therapy, you might develop a limp, lose flexibility, and not be able to stand or walk as long as you did before the accident.
However, you did not like physical therapy. It was inconvenient, and you wanted to get on with your life. You attended the first two weeks of physical therapy but did not finish the last four weeks.
Now, it is six months later. You tell your physician you experience severe pain and have trouble standing. You also have difficulty walking and cannot bend your leg as much as before the accident.
Unfortunately, the doctor states that scar tissue developed because you did not complete physical therapy. The scar tissue is causing the symptoms. Your options are more physical therapy or surgery.
You tell your lawyer that you want to add all these costs to your personal injury claim because it has not been settled. The attorney states they will try, but the insurance company will likely raise failure to mitigate damages as a defense.
Failure To Mitigate Damages Is an Affirmative Defense in Texas
In our example above, the insurance company denies the portion of the claim related to the second surgery, including all economic damages and non-economic damages. Instead, it offers to settle for the value of damages through the date you stopped attending physical therapy. You refuse and want to file a lawsuit against the driver who caused the crash.
Failure to mitigate damages is an affirmative defense, as explained in Texas Rules of Civil Procedure Rule 94. The defendant would need to raise the defense in response to the plaintiff’s complaint or in court. If the defendant does not raise the defense, they cannot use it.
However, defense lawyers understand how to use the information gathered by the insurance companies to argue for failure to mitigate damages. They have the burden of proving that your actions increased your damages.
Suppose the defense proves their allegations that you breached your duty to mitigate damages. In that case, you will not receive compensation for damages caused by your actions and failure to take reasonable steps to limit your damages.
Schedule a Free Consultation With a Dallas Personal Injury Lawyer for Help Mitigating Damages
Insurance companies use many tactics to lower the amount of money you can receive in a personal injury settlement. An attorney will fight these strategies and force the company to acknowledge the correct value of your claim.