Damages and Inevitability… Everyone Dies

One of the insurance industry's favorite tricks is to argue that it was just a matter of time.

It was just a matter of time before she started having problems with her neck.

It was just a matter of time before he wasn't able to be so active.

Etc.

Extended just a little bit the argument sounds like this: It was just a matter of time before she died anyway.

In an absolute sense that's true.

"Death is more universal than life; everyone dies but not everyone lives."

This applies to the whole range of sub-fatal injuries. But let's stick with death for now. And set the “Start Time" as someone's negligent act (or omission) that causes harm.

Even though death is inevitable, what someone else's negligence does is cheat the person they harm (and that person's family) out of the quality of life they would have had between the Start Time and when they otherwise would have died.

How do we figure out the duration? Typically we use the Mortality Table published by the Insurance Commissioner.

Here's what it looks like for a 60 year old man:

So if someone ran over me today I'd miss out on about 21 more years.

Sidebar: The government life expectancy data is super-generalized. There are big differences in life expectancy based on education, income and perceived health. If you want to get more specific try something like theTry this life expectancy calculator from the University of Connecticut. It tells you both expectancy and the number of good years you likely have left.

Duration is pretty objective for life and death.

But what about other things like back injuries or brain deterioration?

Who is to say that in five years someone’s back would have given out if they hadn’t been t-boned or another person’s memory would have started to fail them in eight years if they hadn’t been rear-ended?

Maybe more importantly, who should bear the burden of proof? I think that “it was just a matter of time” sounds a lot like an affirmative defense. And in Washington, defendants have the burden of proving affirmative defenses on a more likely than not basis. So if an issue on which an affirmative defense turns is 50-50, the affirmative defense fails.

What do you think are the logical boundaries—or limits that should be imposed on—the “it was just a matter of time” defense in addition to making defendants prove it on a more likely than not basis?