by, Lexicon Legal
Businesses in any industry can be exposed to commercial liability in any number of ways. Litigators are needed on both sides to both bring and defend these claims. Commercial liability cases involve complex technical issues and detailed issues of law, and because of this, a litigator can face an enormous workload in producing a compelling case at trial.
INDUSTRY DATA
Civil claims are on the rise in many state courts. The Court Statistics Project reports that, after some years of decline, 2017 and 2018 saw increases in the number of contracts, small claims, probate/estate, and tort cases. Contracts claims account for an estimated 8 million cases nationally, and this rose by approximately 75,000 cases in 2018. Small claims also increased by 5%, while tort cases rose by 2%. At the time of this writing, the effect of the number of claims during the pandemic remains to be seen, but it is certain that there is a backlog of cases in many state and federal courts due to closures.
These increases translate to more work for litigators who prosecute and defend these claims. Attorneys serving both plaintiffs and defendants must be prepared to litigate a wide range of issues – both legal and factual – on a wide range of topics.
There are many different types of commercial liability claims. A litigator could face a bodily injury or property damage claim arising from an accident on the company’s premises. Commercial litigation can also include personal and advertising injuries, such as libel, slander, malicious prosecution, wrongful eviction, intellectual property infringements, false arrest, or wrongful eviction. Different business owners might need additional coverages. Doctors, lawyers, accountants, and other professionals can face professional liability for malpractice. New technologies are also opening up new areas of commercial liability: for example, cyber liability. Companies can be liable for the losses their customers sustain due to preventable data breaches. Business owners prepare for a wide range of commercial liability with many different business insurance coverages. Litigators are needed to prosecute and defend many different types of claims.
CONSIDERATIONS FOR PLAINTIFF’S ATTORNEYS
So how can a plaintiff’s attorney prepare a compelling case on a commercial liability claim? First, it is important to understand the most common types of commercial liability cases. A study conducted by The Hartford identified the five most common types of business insurance claims:
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Burglary and theft
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Water damage
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Wind and hail damage
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Fire damage
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Customer slip and falls’
Many of these insurance claims arise from premises liability cases. Commercial liability in these cases requires the plaintiff to demonstrate that the business defendant did not meet the applicable duty of care with regard to its property. Litigators must be prepared to establish the applicable standard of care – and adjust their cases for any case law that modifies, expands, or clarifies the definition. Premises liability litigators must also have an understanding of the medical issues their clients face. The value of the case is determined by the plaintiff’s losses, and this means that litigators must have an intimate understanding of how these injuries impact daily life. Losing sleep, having new physical limitations, and missing important life events can be devastating to an injury victim. These changes can also cause serious tension in interpersonal relationships. A litigator must understand these details to successfully prosecute a premises liability claim against a commercial liability insurance policy.
CONSIDERATIONS FOR DEFENDANT
There are many ways to successfully defend a commercial liability claim. A case can be dismissed early on for procedural reasons – for example, if the plaintiff missed the statute of limitations or if the plaintiff’s attorney has failed to state a claim on which relief may be granted. However, many liability cases must proceed to an investigation of the substantive legal matters at issue. When this occurs, the defense counsel may try to stop the claim in its track by proving that his or her client is not liable at all. For example, imagine that a commercial landlord files a property damage claim against a business owner. The landlord might be able to access coverage under a commercial liability insurance policy if the damage was caused by the business, its employees, or customers. But what if the damage was caused by force majeure? Weather damage is a common source of property damage claims. The damage could also be due to the landlord’s negligence in failing to properly maintain the property. In this case, the business lessee may not be liable, and the landlord might have to file a claim under his property insurance policy.
Like plaintiffs’ lawyers, defense litigators must also be intimately familiar with the losses an injury victim suffers. Juries determine the value of pain and suffering – instead of computer programs relied on by insurance companies. A defense litigator must consider this human element when determining a fair settlement value or the likelihood of the client’s success at trial. Losses are not limited to physical injuries, either. Libel and slander claims involve loss of reputation, loss of business goodwill, and other intangible losses that can be difficult to evaluate. Defense litigators who work closely with experts can get a better idea of the true value of these losses – and what losses will be most persuasive to a jury.
EXTENSIVE LITIGATION SUPPORT SERVICES FOR ALL COMMERCIAL LIABILITY CASES
Commercial liability claims can involve an inordinate amount of labor for both plaintiffs and defense attorneys. Guidepoint’s extensive suite of services can help ease this burden in your next commercial liability case, connecting you with the right experts, data, and research to support your client. Contact us today to learn about how our services support all stages of litigating a commercial liability claim.
Please note: This article contains the sole views and opinions of Lexicon Legal Content and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Lexicon Legal Content is prohibited.
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