Defendant

What is a defendant?

The defendant is the party against whom a claim is brought. In an injury case it is whoever is alleged to have caused the harm.

A defendant may be an individual, a company, a government entity, an estate or any other party capable of being sued.

Most injury defendants never personally control the litigation. Their insurer appoints defense counsel and directs the defence under the policy.

That is why correspondence and negotiation run through an adjuster rather than the person who caused the crash.

Most people never expect to be one, and most injury defendants are ordinary people who made a mistake.

The insurer's control extends to settlement authority, which is why an individual defendant's willingness to resolve a case matters less than it might appear.

Why identify every defendant?

Each additional party can change what a claim is actually worth.

Each additional defendant expands both the available coverage and the scope of discovery.

• Each carries separate insurance coverage
• An employer may be liable under respondeat superior
• A vehicle owner may be liable for negligent entrustment
• A property owner or contractor may share responsibility
• A manufacturer may be liable for a defective component
• A bar may be liable under the Dram Shop Act

What happens after a defendant is served?

They must respond within the period the rules allow, either by filing an answer or by moving against the complaint.

The insurer is notified and appoints counsel, and in most injury cases the carrier rather than the individual controls the defence.

Failing to respond can result in a default, though courts frequently set defaults aside where the defendant acts promptly.

Proper service is required before any of this proceeds.

Extensions of time to respond are routine and granted by consent between counsel.

Why does timing matter?

Because adding a defendant after the statute of limitations has run raises difficult questions about whether the amendment relates back.

That is why investigation aims to identify every responsible party early rather than after the obvious defendant has been sued.

Where a party cannot yet be identified, a John Doe claim preserves the position while the search continues.

Naming placeholder defendants preserves the position while investigation continues.

Amendments adding parties after the deadline raise relation back questions governed by court rule.

Common questions

Am I suing the person or their insurance company?

The person or company is named, and their insurer defends and pays. Insurers are generally not named directly, with limited exceptions.

Can I add a defendant later?

Sometimes, though it becomes difficult once the limitations period has run. Early identification is far preferable.

What if there are several defendants?

Fault is allocated among them by percentage, and each may carry separate coverage.