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airbags did not deploy

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sansari

Junior Member
What is the name of your state (only U.S. law)? Virginia
During a rather horrific accident, which the other driver ran the red light, my car was totaled. I engaged an attorney who is working on collecting from my insurance and at-fault party's also. I asked why we are not filling a law suite against the manufacturer of my car given that the air bags did not deploy and this caused sever injuries to me. Had they been deployed, they would intercepted my momentum and lessened the injuries caused by the pulling motion of the seat belt. My attorney says: to bring a law suit against a manufacturer we need an engineering expert, and the car would have to be preserved which means storage charges.
Is this true? Why can we not rely on the pictures and just ask the insurance to validate that the airbags did not deploy?
 


not2cleverRed

Obvious Observer
Air bags don't always deploy. In fact, sometimes, given the velocity involved and point of impact, the airbags shouldn't deploy.

You would have to prove that the conditions involved should have resulted in the airbags deploying (and quantify how much the injuries could have been mitigated, had the airbags deployed).

In order to prove this, you need an engineer or similarly qualified expert who can analyze the damage and the scene and determine whether the airbags should have deployed, and if so, whether there was a manufacturing flaw that caused them not to deploy, and what that flaw was. It needs to be determined that failure to deploy was due to an inherent flaw in the construction of the car and NOT due to alterations/tampering (benign or malicious) after the vehicle left the factory. This also requires examining the car in more detail than your accident photos can supply.

If you do not have proof that failure to deploy was due to a manufacturing design flaw, or something that happened at the factory, then you have no proof that the manufacturer is at fault.
 
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FlyingRon

Senior Member
The storage isn't going to add up to a hill of beans compared to what the engineer is going to charge you.

As pointed out, what is the year/model of your car and where was your car struck and at what speed. The normal (steering wheel) airbags only come into play on head-on collisions (been there, I got struck by a moving van doing double the speed limit, still got a pretty good wollop from hitting the stop on the seat belt). If you have a car with side curtains, then they may fire in certain side collisions.
 

xylene

Senior Member
Focus on the at fault party, rather than a wild goose chase against a manufacturer that would take years and be aggressively litigated by the manufacturer.
 

Mass_Shyster

Senior Member
What is the name of your state (only U.S. law)? Virginia
During a rather horrific accident, which the other driver ran the red light, my car was totaled. I engaged an attorney who is working on collecting from my insurance and at-fault party's also. I asked why we are not filling a law suite against the manufacturer of my car given that the air bags did not deploy and this caused sever injuries to me. Had they been deployed, they would intercepted my momentum and lessened the injuries caused by the pulling motion of the seat belt. My attorney says: to bring a law suit against a manufacturer we need an engineering expert, and the car would have to be preserved which means storage charges.
Is this true? Why can we not rely on the pictures and just ask the insurance to validate that the airbags did not deploy?
You don't get to double-dip.

Let's say you have $100,000 in damages. You are suing the at-fault party for $100,000. If you want to include the auto manufacturer, and succeed, the court will decide how much of the $100,000 should be paid by the at fault party, and how much by the manufacturer.

If the at-fault party wants to implead the auto manufacturer, that's his (or her) choice.
 

Mass_Shyster

Senior Member
A punitive damage award, and/or pain and suffering beyond the coverage amounts is not an unheard of avenue of relief given the deep pockets of the manufacturer.
If the lawyer, who is familiar with the facts of the case, is not interested in going after the at manufacturer, I suspect (a) there's no malice that would lead to punitives and (b) this won't exceed at fault driver's limits.
 

xylene

Senior Member
If the lawyer, who is familiar with the facts of the case, is not interested in going after the at manufacturer, I suspect (a) there's no malice that would lead to punitives and (b) this won't exceed at fault driver's limits.
That's right and I agree but that differs from double dipping.
 

FlyingRon

Senior Member
My sister is a senior partner in a huge law firm that among other things defends GM against product liability suits. I can tell you that the cost to litigiate a one person case against GM is going to be prohibitive, and you're unlikely to prevail.

Note that even if you get a judgment, you have to pay back your insurer and pay your lawyer and then pay taxes on the FULL AMOUNT of the settlement. If those "punitive damages" put you into the AMT range (doesn't take much), you'll lose the deduction for the legal expenses and may end up owing more to the IRS than you netted. In fact, if you're going to do this, you better do it this year, because next year, you'll certainly be screwed tax wise.
 

Taxing Matters

Overtaxed Member
Note that even if you get a judgment, you have to pay back your insurer and pay your lawyer and then pay taxes on the FULL AMOUNT of the settlement.
The tax part of that is not correct. The full amount of the settlement is NOT included in income for federal income tax purposes. This is a physical injury tort claim, and under Internal Revenue Code (IRC) section 104(a)(2) the compensatory damages are not included in the plaintiff’s gross income for federal income tax purposes. But any punitive damages would be included in the plaintiff’s gross income. So unless there are punitive damages awarded the OP isn't going to have to worry about any income tax to pay on amounts received from a settlement or judgment here.
 
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