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Mitigation After an Accident: Cases to Consider

In a previous blog post, Injured Victim’s Duty to Mitigate Damages After an Injury Accident, an overview was provided on a car, truck, motorcycle accident or other personal injury victim’s duty under California law to mitigate their damages and injuries following an accident. This blog will focus on the victim’s duty to mitigate damages when they may not be financially able to do so. In a nutshell, California law does not require, nor does it expect, an injury victim to undergo mitigation measures if the victim does not have the financial means to make the necessary expenditures. A classic example of mitigation when dealing with a car, truck or motorcycle accident is the at-fault party’s insurance company refusing to pay for storage fees of the victim’s automobile pending their liability determination, and instead requiring the victim to remove the vehicle from storage and place it in a free facility or park it in front of their home in order to avoid racking up storage fees. While this makes sense with respect to minimizing damages or costs from continuing to accrue (in the form of daily storage fees), the flaw in this expectation on the part of the insurance company is their belief that the personal injury victim has the financial means to pay to tow their car from the storage facility and pay off their current storage bill while investigation is ongoing. California law has been very clear in this type of situation. In Valencia vs. Shell Oil (1944) the court addressed the issue of whether an injured party must mitigate damages when they are financially incapable of doing so. The Court held, “The duty to minimize damages does not require an injured person to do what is unreasonable or impracticable, and, consequently, when expenditures are necessary for minimization of damages, the duty does not run to a person who is financially unable to make such expenditures.” Thus, the duty to mitigate only extends as far as the car, truck, or motorcycle victim’s wallet. If an insurance company or at-fault party refuses to cover all of the storage and towing fees incurred during their investigation because the victim could not financially remove the car, truck or motorcycle on his own, they will be found responsible for not only the costs incurred that they did not cover, but also for court costs and interest related to the lawsuit filed against the at-fault party to recover such costs. An interesting benefit the injured victim also has when dealing with mitigation issues is that the defendant has the burden to prove that the injured party was financially capable of expending money to mitigate damages and failed to do so (see Hunter vs. Croysdill (1959)). If you are injured in a car, truck, motorcycle accident or other personal injury matter, contact our accident attorney today for a free consultation.

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