Sudden Medical Emergency Doctrine: Liability Defense or Affirmative Defense?

Image of a sign that reads Accident and Emergency

Imagine the following liability claim scenario: Your insured lost consciousness, swerved over a median, and struck a legally parked vehicle, rendering it a total loss. The claims investigation reveals your insured suffered an unforeseen medical event that precipitated the accident, and you believe your insured is not liable for the property damage based on the Sudden Medical Emergency doctrine. The insurer of the other vehicle did not accept your liability denial and filed its subrogation claim in the Auto Forum.

Assuming you have evidence to prove this doctrine is applicable in the loss state, and that the medical condition was unforeseeable, how would you present this argument to the arbitrator?

With a Sudden Medical Emergency defense, you are asserting your insured did not breach any duties owed because your insured was unaware of the medical condition that caused the loss of control. The appropriate place to make this argument is in your contentions. This allows an arbitrator to render a final and binding decision on liability. Sudden Medical Emergency is not an exclusion to compulsory arbitration (see Article Second of the Auto Agreement). As such, it would not be argued as an Affirmative Defense (AD). It also should be noted that, if it is argued as an AD and the arbitrator grants it, the Applicant could continue to pursue the claim outside of arbitration.

In closing, argue the reason(s) for the lack of liability, like a sudden medical emergency, in the contentions to have your insured found not liable for the subrogation claim. And, as always, support those contentions with evidence!

Article published in: January 2016 E-Bulletin