Insurance Coverage Litigation

Is the insurer in your personal injury case attempting to disclaim coverage?  Attorneys and clients alike run into problems when insurers file a “declaratory judgment” action against the insured, asking a court to declare that there is no insurance coverage.  Insurers’ claim lack of coverage in a wide variety of circumstances including:

  • late notice — when the insured fails to put the insurer on notice soon enough after the occurrence;
  • failure to cooperate — when the insured does not provide the assistance to the insurer that is required by contract (e.g., a criminal defendant who is also sued civilly will often choose to assert his Fifth Amendment privilege against self-incrimination);
  • application of an exclusion — insurance policies contain technical exclusions based on the type of insurance (e.g., a homeowners policy excludes “automobile” liability that would be covered by car insurance).

Insurance coverage can vastly change the financial outcome for injured people.  Posey Lebowitz has significant experience litigating, on behalf of plaintiffs and insureds, to obtain coverage that insurers are wrongfully trying to deny.

Please contact Mr. Posey to discuss litigating your insurance coverage dispute, as failure to contest the coverage action will certainly result in loss of coverage.

Why defenses are important, even to plaintiffs: assumption of the risk

Defense lawyers assert “assumption of risk” whenever a sport is involved — but it only applies sometimes.  In Virginia, for example, assumption of the risk is subjective, taking into account “what the particular plaintiff in fact sees, knows, understands and appreciates.” Amusement Slides v. Lehmann, 217 Va. 815 (1977). The defense requires proof that the plaintiff (1) fully appreciated the nature and extent of the risk and  (2) voluntarily incurred the specific type of risk.  Id. at 819.

Whether a defendant prevails can be very fact-intensive.  For example, a person sliding into home plate might have assumed the risks of collision by engaging in a contact sport.  Likewise, a spectator along first base might have assumed the risk of being hit by a baseball.  But not every risk is foreseeable or assumed — a spectator at a baseball game does not assume the risk of the seat malfunctioning and causing a back injury.