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Best practices for evaluating damages in third-party liability claims

Properly assessing damages is crucial to developing a clear plan for handling a liability claim.

By Kori E. Eskridge and Kelly G. Chartash | July 13, 2022 at 09:11 AM
Another factor to consider when evaluating claims, especially pre-suit, is who has the burden of proof and what might be necessary to meet that burden. Typically, a plaintiff has the initial burden of proving their claims and then, once met, the burden shifts to the defendant to rebut the plaintiff’s claims or evidence. (Credit: shutterstock.com) Another factor to consider when evaluating claims, especially pre-suit, is who has the burden of proof and what might be necessary to meet that burden. Typically, a plaintiff has the initial burden of proving their claims and then, once met, the burden shifts to the defendant to rebut the plaintiff’s claims or evidence. (Credit: shutterstock.com)

Damages are an essential part of nearly every third-party liability claim. Yet, evaluating damages can invoke a sense of dread and anxiety in even the most seasoned of claims professionals and litigators. This is because damages can come in many different forms and require different burdens of proof. In the end, it can come down to rolling the dice at trial. But, properly evaluating damages, both pre-suit and during the pendency of litigation, is crucial to having a clear vision and plan for investigating alleged damages and making key decisions regarding whether to attempt early resolution of a case or mount a vigorous defense.

One of the first things to know is whether the incident occurred in a comparative-negligence or contributory-negligence jurisdiction. The majority of states utilize some variation of a comparative negligence model, which considers the percentage of fault of the plaintiff and adjusts the damages accordingly.

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