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 dishonest.
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.