Q: California Seatbelt defense falsely being claimed by defense counsel
Filed in pro per civil unlimited against negligent driver that rear ended me and was cited for speeding at scene of accident. Went to hospital and have been treating for spinal injury. Defense counsel for Kemper responded to suit by claiming plaintiff, (myself) not wearing seatbelt. However, I was, police report reflects I was wearing belt also, I always wear a seatbelt. Only fools do not wear seatbelts. I am only a fool for representing myself, but that is a different topic. Is claiming seatbelt law fictitiously a legal strategy by defense attorneys and how can they substantiate a false claim?How is rebuttal to this misleading information upon the courts managed? Where is there details on how to approach this tactic of defense? Nothing in google which seems odd. Not easily located on this situation via google.
A: Defendants get to assert defenses. They have to prove them by a preponderance of the evidence. You are entitled to dispute the defenses. That happens at trial by testimony or other evidence. Since there has been no trial, you have no right to prevent the Defendants from claiming this defense.
the defense can claim anything..........but they have to prove it at trial.
you should make an appointment with a LOCAL PI lawyer asap.
the ins co is taking advantage of you.
however, in our office we would not accept a case like this where the potential client has been talking with the ins co.
there is no way for a lawyer to know what you said OR what the ins co thought they heard you say.
Defense attorneys can assert "general" and "specific" defenses... that doesn't make them true. However it puts those allegations at issue. Both sides put their facts on and the jury decides. How do you intend to prove you were wearing a seatbelt? Would a seatbelt have made any difference (in your injuries) in a rear end collision?
Honestly, based upon your question I think you are headed for trouble. The issues get more complicated as litigation proceeds. I'm not just talking about legal issues... but also procedural. Deadlines are always a problem. Assuming you get through pleadings, motions and discovery deadlines, they become complicated 100-days before trial. I presume your goal is to settle your case at mediation. If your goal is a jury trial... that might not work out as planned. But it will give you your day in court.
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