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Defeat the 'sudden medical emergency' defense: even in the most egregious motor vehicle cases, insurers can escape liability by arguing that the defendant suffered from a sudden and unforeseeable physical incapacity. Foil that tactic with careful discovery and analysis.

Article Excerpt
It seemed a common clear-cut and auto case: The plaintiff's vehicle was struck from behind while lawfully stopped at a traffic signal. After collecting the medical records and bills, the plaintiff's attorney sent a demand package to the defendant driver's insurer, expecting a prompt settlement.

But the insurer denied that the defendant was liable, insisting that he had experienced a "sudden medical emergency." The defendant said he had blacked out as a result of having been told an extremely funny joke by a passenger in his vehicle. He even produced a letter from his doctor, diagnosing him with a form of laughter-induced syncope.

Although the judge in this case--less easily amused than the defendant--rejected the sudden medical emergency defense, other plaintiffs have not been as fortunate. Courts in virtually every state decline to impose liability where a motor vehicle collision demonstrably results from a sudden and unforeseeable physical incapacity.

Do not accept this argument at face value. A detailed analysis of the circumstances in each auto case may reveal ways of attacking this defense. Moreover, discovery may reveal that the defendant's sudden emergency was caused by his or her physician, who may be liable. You may also find that the sudden emergency was foreseeable to the defendant before the collision.

The basis for the sudden medical emergency defense (also known as "sudden incapacity") lies in the absence of any negligent conduct on the part of the defendant. Some courts even consider a sudden loss of consciousness to be an "act of God." (1) Courts have decided, understandably, that "as between an innocent passenger and an innocent fainting driver, the former must suffer." (2)

That said, this defense is not necessarily an easy out for defendants. To avoid liability on the basis of a sudden medical emergency, the defendant must show several elements:

* He or she suddenly became physically incapacitated.

* The incapacity was not reasonably foreseeable.

* The incapacity rendered the defendant unable to control his or her motor vehicle.

* The ensuing collision was caused by a loss of control resulting from the sudden medical incapacity. (3)

Under the law of most states, the burden of proving the elements of the defense of sudden medical incapacity rests with the defendant, as long as the plaintiff has first made out a prima facie case of negligence. (4)

To fall within the scope of this defense, a defendant's alleged incapacity need not include unconsciousness, as long as the incapacity is severe enough to render the defendant suddenly incapable of controlling a motor vehicle. (5) Even...

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