In Personal Injury cases when the insurance company denies
the claim, the injured party always has the option to file a lawsuit against
the person or company that injured her. A problem sometimes arises when an injured
person chooses to file a lawsuit. Often
times, the commencement of the lawsuit does not happen until at least a year
after the accident that caused the injury.
The reasons for the delay can be attributable to a number of factors
including the nature of the injury, willingness of the insurance company to negotiate
the claim, and a complete and accurate calculation of the full measure of the
injured persons damages.
During the time before the commencement of a lawsuit,
memories of the fine details of the events leading to the injury may change or
become less clear. This makes sense of
course because all of our memories fade over time. However, during the course of your lawsuit,
you will be asked very specific questions under oath about the fine details of
the events leading to your injury. Often
times when an injured person is faced with these very specific questions, they
will make assumptions about what they believe the answer to be. Of course, the assumptions may be made with
faded memories and could potentially cause the injured person to give
inconsistent or inaccurate testimony.
It is important to understand that when this happens, it
often happens as the result of fading memories and bad assumptions and perceptions
of events that took place over a year earlier.
This is not typically the result of an injured person being
Recently, the Second District Court of Appeal addressed this
very scenario in Grover v. Karl, 164 So. 3d 1285 (Fla. Dist. Ct. App. 2d Dist.2015). In this case, the injured party
testified in her deposition to facts that were different from the facts that
she alleged in her original complaint.
The Court acknowledged that sometimes memories fade and can be different
from time to time. The Court ruled that
even if her memories of events were different from her original complaint, she
should be given the opportunity to amend her complaint and present the evidence
as she recalls unless it clearly appears that (a) allowing the amendment would
prejudice the opposing party, (b) the privilege to amend has been abused, or
(c) amendment would be futile.
Regardless of the Court’s ruling, the best course of action
for an injured person is to always discuss with your lawyer your memory of the
fine details of your accident prior to filing a lawsuit or giving sworn testimony. This ensures that any faded memories you have
will not turn into false assumptions during your testimony.