Common issues raised by defense lawyers in Oklahoma personal injury cases
Insurance companies and their lawyers use a variety of tactics to deny and limit recovery to personal injury victims. The two basic examples are:
1) Comparative Negligence – This is where the defendant places part, or all, of the blame for the injury on the injured. Basically, the rule in Oklahoma is that a plaintiff may not recover if his/her negligence is greater than the negligence of the defendant(s).
The exact language in the Oklahoma Statutes is:
In all actions hereafter brought, whether arising before or after the effective date of this act, for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage. [Emphasis added]. See: 12 O.S. § 13
So, if a plaintiff is found by the jury to be 20% at fault, than his or her damages are reduced by that amount.
2) Assumption of Risk – This can bar recovery for the plaintiff. This occurs when the plaintiff has expressly or impliedly assumed the risk. Risky activities are generally associated with this.
The most common defense we’re now seeing from insurance companies is attacking the credibility of the injured person. They usually don’t come out and say that the person is lying,but they’ll question “how hurt they were” – even in the face of their paid testifying doctors agreeing with the treating doctors. What’s worse is that they hire the same doctors (that their full time job is to testify in cases). These doctors almost always try to discredit the treatment of the patient, often a year or two after the treatment was rendered.