Has an insurance adjuster told you that you cannot receive the full value of your injury claim because you failed to mitigate damages? It might not seem fair, but injured victims have a duty to avoid increasing their damages for a personal injury claim. They may not be entitled to compensation for all losses if they fail to take reasonable care to mitigate damages.
Understanding the Duty to Mitigate Damages in Illinois Law
In Illinois, the duty to mitigate damages applies to various legal claims, including personal injury tort claims. The duty to mitigate means an injured victim is legally obligated to take reasonable steps to protect themselves from further injuries and financial losses.
A victim may file a personal injury lawsuit to seek compensation for economic damages, including lost wages and medical bills. They may also recover non-economic damages for emotional distress, pain and suffering, and loss of quality of life.
Personal injury mitigation requirements mean that an injured party must use caution and exercise care to keep damages within reason. The duty to mitigate helps prevent injured parties from intentionally increasing their damages to receive a larger settlement or jury verdict.
Examples of Failing to Mitigate Damages in a Personal Injury Case
You are required to take ordinary and reasonable care to prevent further harm after an accident or injury.
Examples of things the other party may use to argue you failed to take proper steps of mitigation include:
- Failing to exercise ordinary care to obtain medical treatment after an accident or injury
- Not trying to find gainful employment if you cannot return to your old job once you are clear to work
- Failing to follow your doctor’s instructions or treatment plan, including not showing up to doctor’s appointments or completing physical therapy
- Disregarding professional advice for your care, including failing to seek a second opinion if you disagree with your doctor
- Refusing to return to work when your physician states you can work
- Returning to work before your doctor releases you to do so, or performing tasks you are instructed to avoid
Not all refusals of treatment are failures to mitigate. You may want to obtain a second opinion. If you are accused of failing to mitigate damages, contact an attorney immediately to discuss how to protect your right to compensation for all damages.
Comparative Fault vs. Duty to Mitigate Damages
Comparative fault and mitigation are both defenses used by insurance companies and at-fault parties to avoid liability for a claim. Both defenses involve accusing the injured party of wrongdoing. However, there is a distinct difference between these legal concepts.
Duty to mitigate refers to your actions or inaction after your injury. Comparative fault refers to your actions or omissions that contributed to the cause of your injuries.
For instance, suppose you were distracted when you fell on someone’s property. The owner may allege that being distracted contributed to the cause of your fall. If a jury agrees, your compensation could be reduced by your percentage of fault. Your claim could be dismissed entirely if your contributory fault is judged to be 51% or higher.
On the other hand, suppose you delayed having the surgery your doctor recommended after the fall. Because of your delay, you sustain a permanent impairment. A jury may determine that any damages related to the permanent impairment are your responsibility, as you failed to mitigate damages by delaying surgery.
What Happens if You Fail to Mitigate Damages After a Personal Injury or Accident in Chicago, IL?
The failure to mitigate consequences can be costly for an injured victim. You may receive less for your personal injury claim. Any damages a jury assigns to your failure to mitigate can be deducted from your damages award.
Mitigation can also impact personal injury settlements. The insurance company may use allegations of failure to mitigate during negotiations to justify a lower settlement amount.
Failure to Mitigate Damages Is an Affirmative Defense
The defendant (the party who caused your injuries) must raise allegations of failure to mitigate as a defense. Therefore, the defendant typically has the burden of proving that your failure to mitigate caused additional damages. The defendant must also prove that the mitigation it claims would have been reasonable and feasible.
How to Prove Mitigation of Damages
Even though the defendant must prove their allegations, you need to aggressively fight the allegations to protect your rights.
Evidence that can help prove you took steps to mitigate damages includes, but is not limited to:
- Medical records
- Job applications
- Employment records
- Follow-up medical care
- Testimony from expert witnesses
- Proof of modifying activities, such as using assistive devices or hiring household help
- Witness statements
A Chicago personal injury lawyer can help you prepare to defend yourself against allegations of failure to mitigate damages. An attorney also helps clients avoid making mistakes that could hurt their case.
Contact the Chicago Personal Injury Lawyers at Powell and Pisman Injury Lawyers for Help Today
It is in your best interest to consult an attorney early in the claims process. At Powell and Pisman Injury Lawyers, our legal guidance can preserve your right to damages. A Chicago personal injury lawyer helps you avoid making mistakes that could hurt your case while taking steps to maximize your settlement. Contact us today at (312) 635-5400 for a complimentary consultation with one of our experienced accident attorneys.