INSURANCE COMPANY EXCUSES FOR NOT PAYING JUST COMPENSATION FOR YOUR CASE

THE BASIC INSURANCE COMPANY THINKING GOES SOMETHING LIKE THIS:

“The accident was not our insured’s fault. If it was his fault, you
probably don’t have serious injuries. If you do have serious injuries,
you probably had these health problems before the accident.”

BACKFIRE!

Sometimes insurance tactics can backfire. Years ago, there was a
somewhat infamous case where the claims adjuster reviewed the accident
report and noted that the police report stated that there was a
toy poodle in the claimant’s car at the time of the accident. The
adjuster denied the claim, arguing that the accident was the fault of the
claimant because “they had evidence” that the claimant was distracted
while playing with his dog. However, the adjuster ended up with egg
on his face after it was disclosed that the “toy poodle” was not a
reference to the driver’s pet, but was reference to a child’s toy that was
found in the car.

EXCUSES

Other insurance company excuses include the following:

The accident was your fault because you did not get enough sleep the
night before.

Your brakes were not working right or, alternatively, you didn’t brake
fast enough.

The insured driver couldn’t avoid the accident because the sun was
too bright.

The [city, county, state] is responsible for the accident because of poor
road construction or bad traffic signs.

You should have noticed that our driver was going to run through a
red light.

You are lying about (check which apply):

❏ Your speed
❏ Your pain
❏ Your wages
❏ Your health history.

And More Excuses!

QUESTIONS TO ASK THE AT-FAULT DRIVER’S INSURANCE COMPANY WHO WANTS YOU TO “JUST SIGN A FEW FORMS AND GIVE US A STATEMENT”

1. Will you put in writing the fact that the accident was not my fault?

2. Will you tell me the maximum dollar amount of the insurance
policy of the person who caused the accident?

3. If I give you a recorded statement, will you let me take a recorded
statement of the person who caused the accident?

4. Will you give me a list of all of my friends, neighbors, and employers you have interviewed thus far?

5. Will you agree to supplement that list in the future?

6. If I sign a medical release, employment release, or tax release, will
you agree to send me a copy of all documents you obtain using
those releases?

7. Will you give me a copy of the recordings you made of any witness
interviews?

8. Will you send me a copy of the insurance policy of the at-fault drier, including a copy of any “umbrella” policies that exist?

9. Will you agree to provide me copies of any video surveillance of me
that your investigators you have conducted, within ten days of date
of the surveillance? This also means that you have to provide me
with a copy of all videos made up until this date.

10. Will you provide me with a copy of any background information you have obtained about me from any insurance agency or reporting agencies that produce reports for your company?

If the insurance adjuster agrees to any of these conditions, make
sure that the commitment is put in writing.

SOME ADDITIONAL HAZARDS ON THE ROAD TO SUCCESSFUL RECOVERY FOR YOUR INJURY CLAIM

HOSPITAL AND DOCTOR LIENS

  1. Liens. Liens against your case can be created by payments made
    for your health care by car insurance companies, health insurance
    companies, Medicare, or Medicaid. For example, if your health insurance
    company pays a $2000 hospital bill, then that insurance
    company must be repaid when you settle your case. The precise
    repayment calculations may vary, but the important point is that
    liens must not be ignored. Your attorney should determine every
    lien that exists before recommending a settlement figure for your
    case. Often, in difficult cases, it is possible to negotiate the size of
    the lien.

PRIVATE INVESTIGATORS

  1. Undercover investigations. Insurance companies
    routinely hire investigators to spy on persons who file injury
    claims. The investigator may try to get videos of the injured person
    performing physically demanding tasks in an attempt to demonstate
    that the injury is being faked. Of course, honesty is the best
    policy, and no one should ever exaggerate or lie about symptoms.
    However, sometimes seriously injured clients are so financially dis-
    tressed that they force themselves to work even at the risk of more
    serious re-injury. Doing so can create the wrong impression that
    the client is not actually disabled.

DISHONEST “EXPERT” WITNESSES

  1. Unethical practices by insurance attorneys.
    Most attorneys, including those who work for insurance companies,
    are honorable people. Unfortunately, this is not always the
    case. Sometimes unethical attorneys hire “expert witnesses” who
    will do or say anything for the right fee. A seasoned personal injury
    attorney will be constantly vigilant to make sure that dirty tricks by
    the defense do not torpedo a client’s case.

SOCIAL MEDIA DANGERS

  1. Social Media. You should never post anything about your
    case on any social media platform. Neither should you post
    information about your physical activities. Insurance companies
    now routinely search the social media posts of any persons in
    order to obtain evidence against that person. For example, despite
    being seriously injured, you may feel well enough on one day
    to go water skiing. If a photo of you skiing is captured on social
    media, the insurance attorney will use that photo at trial in order
    to convince the jury that you are faking your injuries.

SOME THINGS A SAVVY PERSONAL INJURY ATTORNEY WILL BE DOING TO GET YOU THE BEST RESULTS IN YOUR PERSONAL INJURY CASE

THE BEGINNING

• Initial interview with the client, getting a basic understanding of how
the injury occurred and what medical conditions have followed from it.

• Gathering all of the paperwork associated with the injury, including
police reports, accident reports, medical records and bills, weather
reports, and any witness statements taken by the police or other
investigators.

• Examining the client’s insurance policy to determine whether there
are any clauses in the insurance policy to pay current or future bills
of the client. This also means examining the Uninsured or Under-
insured Motorist provisions of the client’s insurance policy.

MARSHALING THE EVIDENCE

• Making a list of other evidence that must be obtained, such as
photographs, recorded witness interviews, and official government
records.

• A good trial attorney will begin drafting jury instructions early in
the case, helping to focus on what must be proved at trial.

RESEARCHING THE APPLICABLE LAW

• Conducting any research needed to clarify the legal issues that will
arise at trial or before trial. A good trial lawyer has a subscription to
up-to-date computer research databases.

OBTAINING THE FULL MEDICAL PICTURE OF THE CLIENT’S CONDITION

• As the client’s medical condition begins to stabilize, it is important
that the attorney obtain copies of all pertinent medical records.

• If it is likely that the insurance company will argue that the client
already had pre-existing health conditions, it is important for the
attorney to obtain past medical records in order to demonstrate
that the client’s condition has significantly worsened because of the
accident. The attorney may need to schedule an interview with the
client’s treating physician to clarify these points.

DEALING WITH THE CLIENT’S INSURANCE COMPANY

• Analyzing the client’s health insurance policy to determine whether
money paid by that insurer must be repaid.

• Putting the insurance company “on notice” of the claim and also
notifying the client’s UIM insurer (Underinsured Motorist).

EXPLORING SETTLEMENT OPTIONS

• After all of the pertinent factual information has been obtained,
and the legal issues clarified, meeting with the client to discuss settlement
options.

• Presenting a settlement “demand package” to the insurance company, with a deadline for response.

FILING THE LAWSUIT

• If the case does not settle, filing a lawsuit and having a process
server properly serve the Summons and Complaint upon the
defendant.

• As soon as possible, obtaining a trial date from the court.

• Conducting any necessary “pretrial discovery.” Discovery tools
available to the trial lawyer are interrogatories (written questions),
depositions (sworn testimony of witnesses), and requests for production
(obtaining the opposing side’s documentary evidence).

• If the insurance company attorney wishes to take depositions of the
client, doctors, and other witnesses, it is important that the client’s
attorney make sure they are prepared for the depositions.

• The client and witnesses must again be prepared, this time to testify
at trial. An attorney may not ethically tell a witness what to say.
However, the attorney can help the witnesses by letting them know
the types of questions they will face so they can reflect carefully so
as to give the most accurate answers.

• Filing the required pretrial briefs and motions, as well a set of
proposed jury instructions.

• Trial!

QUESTIONS TO ASK WHEN INTERVIEWING AN ATTORNEY FOR YOUR PERSONAL INJURY CASE

1. Can you provide me with a sample of your fee agreement?
(Ask for a full explanation of his or her fees and costs, and how they are
calculated.)

2. How many years have you been handling personal injury cases?

3. How many years of trial experience do you have?

4. Do you also have experience representing insurance companies in
personal injury cases? (This kind of experience gives your attorney
insight into how claims adjusters and insurance professionals
evaluate cases.)

5. Do you have any judicial experience? (Working as a judge gives an
attorney an objective view of what happens in the courtroom.)

6. Do you carry errors and omissions (malpractice) insurance?

SOME GUIDELINES FOR FINDING A QUALIFIED PERSONAL INJURY ATTORNEY IN IDAHO OR WASHINGTON

1. Feel free to interview more than one attorney.

2. Don’t hire an attorney who rushes you to sign a fee agreement
without fully explaining the terms of the fee agreement.

3. Do not hire an attorney who does not have significant
trial experience.

4. Try to find an attorney who has not only represented injured
persons but has, in the past, represented insurance companies in
injury cases. An attorney who has represented insurance companies
has obtained unique insight into the way that claims adjusters
and defense attorneys think and the way they evaluate claims.

5. Beware of any attorney who contacts you in writing just after you
have had an accident, for the sole purpose of soliciting your case.
If you are contacted “cold,” it should be for the purpose of providing
you with free information. “Cold contacts” do not violate the
Bar rules, but they are not helpful if they do not provide useful
information.

6. Avoid any attorney who refers you to specific doctors for treatment.
Except in the case of very narrow specialties, juries are suspect of
treatment provided by doctors chosen by an attorney.

7. Find out if the attorney belongs to the Idaho Trial Lawyers
Association or Washington State Association for Justice.

8. Ask if the attorney’s background includes working as a judge.
Once you have chosen an attorney, make sure you understand how
your relationship with your attorney will work.

Will your attorney send you all documents generated or received by
his office? Can you contact her by e-mail so as to avoid “telephone
tag”? Ask your attorney to explain the amount of time the completion
of the case is likely to take.

Make sure you are fully informed about the identity of the persons
who will be working on your case.

DO YOU REALLY NEED AN ATTORNEY TO SETTLE YOUR PERSONAL INJURY CASE?

HIRING AN ATTORNEY IS NOT ESSENTIAL

You do not need an attorney to settle a small personal injury case. In
fact, you might end up with a net smaller settlement after the attorney
subtracts his or her fee in smaller cases. This outcome would not be fair
to you; therefore, I do not handle very small personal injury cases.

THINGS TO CONSIDER BEFORE DECIDING WHETHER TO HIRE AN ATTORNEY

Before you decide whether to hire an attorney,
consider the following:

In 2004, the Insurance Research Council, a research organization
created and funded by the insurance industry, did a comprehensive
study comparing the value of settlements people received for the
same injury when they were represented by an attorney compared
to when they did not have lawyers. The Insurance Research Council
determined that people who were represented by an attorney received
almost three and one-half times more, even after the attorney’s fees
were paid.

SECRETS IN THE CLAIMS ADJUSTER’S TRAINING MANUAL

It was revealed that the 1995 training manual for the claim adjustors
of one of the nation’s largest insurance companies stressed the importance
of convincing claimants to represent themselves and not retain
an attorney.

Again, it is important to remember that the insurance company’s
own research shows that people who have hired an attorney to
represent them receive more money than those who do not have
an attorney. Do you think the insurance adjuster will share this
information with you?

Most personal injury attorneys will provide a free initial consultation. It might be prudent to take advantage of this free service to help you decide whether to hire an attorney.

WHAT YOU MUST PROVE TO WIN A PERSONAL INJURY CASE

A number of things must be proved at trial to win a personal injury case. Although most cases are settled before trial, it is important to muster the evidence needed to demonstrate to the insurance adjuster the fact that your case will be a winner at trial if the case is not settled

EVERYTHING STARTS WITH PROVING NEGLIGENCE.

To begin with, you must prove that someone’s carelessness (negligence) caused your injury. In the case of motor vehicle accidents, that can be demonstrated by showing that the other driver violated the rules of the road. In other cases, it can be proved by showing that someone acted in a careless manner in a situation where he or she had a duty to act with prudence and care.

YOU MUST ALSO PROVE PROXIMATE CAUSE.

If you cannot prove negligence, you will lose. You will also lose if you prove negligence but cannot prove that the negligence was the cause of your injuries. For example, if the other driver was driving while intoxicated, but the accident was caused because you went through a stop sign, then the driver’s intoxication was not the cause of the accident.

YOU MUST SUE THE RIGHT PERSON OR CORPORATION.

If you sue the wrong person or corporation, you will lose. If you wait too long to sue, you will lose. The path to winning is narrow, but the road to losing is very wide.

To protect your right to financial compensation after an auto crash or some other type of injury, you should consult with an experienced personal injury attorney as soon as possible.

WHAT IS A PERSONAL INJURY CASE?

When lawyers say they handle “personal injury,” “wrongful death,” “auto accident,” or “serious accident” cases, what are they talking about? Well, here are the basics.

THE BASICS

All of these claims are cases where someone has been injured or killed due to someone else’s negligence (carelessness). These injuries can give rise to a claim for money damages for past and future medical bills, past and future wage loss, and past and future pain and suffering. If the only damage in your case is that your car was damaged, then you don’t have a personal injury case – but you may have a property damage case.

WRONGFUL DEATH CASES

If someone else’s negligence results in death, this accident can give rise to a wrongful death claim. State laws differ as to which relatives of the deceased can obtain damages for a wrongful death case. You should consult an attorney familiar with Idaho law or Washington State law on this subject, depending on where the crash occurred.

CRITICAL TIME LIMITS

Every type of personal injury case is governed by a statute of limitations. This means that, if a lawsuit is not filed within a certain time frame, the claim is forever barred. Washington and Idaho have differing statutes of limitations. Also, in Idaho, if the negligence was committed by a government agency, you must first file an administrative tort claim within 180 days of the injury, or you lose the right to sue even before the statute of limitations has run.

GET PROMPT LEGAL ADVICE FROM AN EXPERIENCED PERSONAL INJURY ATTORNEY

If you have been seriously injured due to someone’s negligence, you should consult with an experienced personal injury attorney as soon as possible, so you don’t lose any of your rights to recover monetary damages.

THE INSURANCE CLAIMS ADJUSTER IS NOT YOUR FRIEND

It is unfortunately true that many claims adjusters take advantage of

injured people before they have a chance to speak with an attorney.

Some adjusters will try to scare you by telling you that an attorney

will take a portion of your recovery for just a brief consultation. Some

claims adjusters will put unreasonable time pressure on your settle-

ment decision.

NOT ALL ARE BAD APPLES

Now, let me be clear that there are many honorable people in the

claims industry. For over sixteen years I worked almost exclusively as

an attorney for insurance companies, and I came to know many fine

claims reps who were totally honest, solid professionals.

THE CLAIMS ADJUSTER PUTS THE INSURANCE COMPANY’S INTEREST FIRST

Nevertheless, claims adjusters are not paid to be your friend. They are

paid to work for the insurance company’s interest, which may or may

not coincide with your best interests. Adjusters get promoted for closing files,

not for giving injured people personalized treatment.  Here

are some tactics I have seen insurance companies use to push you to

prematurely settle a claim at less than full dollar value:

  1. Adjuster of the week program. Here, it seems

every time you call the insurance company you are directed to a

different person, who then asks you to repeat information given

to previous adjusters. [Related problem – the endless voice mail

menu.]

  1. Stalling. If you’re injured and out of work, the insurance

company knows that you may be desperate for a quick settlement,

even if below fair value.

  1. Playing doctor. Insurance adjusters will frequently tell

you that you’ve received too many treatments. Or, they may tell

you that the proof that you are not seriously injured is the fact that

you haven’t been going to the doctor for treatments often enough.

Heads they win, tails you lose.

  1. Bogus discounting. Years ago, a successful class action

was brought against one insurance company that deducted $50

every time they totaled out a car. The company’s theory was that the

value of most cars could be reduced $50 because the cars probably

needed a good washing. The court assessed a multi-million dollar

punitive damage award against the insurance company.

  1. Acting like your friend. Look, the insurance adjuster

may be a fine person, but he or she is not your friend. If he visits

you at your hospital or she comes to your home, these are not social

calls. If you hire an attorney, those visits will stop.

  1. Blaming it on the computer. Many insurance companies use computer programs to calculate how much medical

treatment you deserve and how much of a final settlement should

be paid for your case. Does this approach make sense?  Just ask

yourself whether you would go to a doctor or a computer if you

needed surgery.

In 2010, the Idaho Supreme Court upheld a multimillion-dollar ver-

dict against Prudential Property and Casualty Insurance Company,

based on the way it treated one of its own policy holders. Testimony at

trial showed that the company refused to pay medical bills, under the

uninsured motorist portion of the insurance policy, until the entire

case was settled:

The adjuster who handled the claim in this case from its inception

until June 11, 2004, had worked for the company since May 1975. She

testified that the company had a standard practice for handling UM

claims, that it was the company’s practice not to pay undisputed med-

ical bills from UM coverage until the entire UM claim was settled, and

that to the best of her knowledge she handled this claim in the way the

company wanted it handled. Her supervisor, who had worked for the

company for about twenty-eight years, testified that it was the com-

pany practice not to pay undisputed medical bills under UM coverage

until it settled the total UM claim, even if the insured was incurring

medical bills for two or three years. A third witness had worked for

the company from 1978 until September 2005 and was a UM adjuster

during the time at issue in this case. She handled this claim beginning

in June 2004 and testified that she had reviewed the handling of the

UM claim in this case and it was handled in the way she was trained

to handle claims.

The jury found that Liberty Mutual had breached both the MedPay

and UM provisions of the insurance policy and that it had commit-

ted bad faith in its handling of the UM provision of the insurance

contract.

Weinstein v. Prudential Prop. & Cas. Ins. Co., 149 Idaho 299, 233 P.3d

1221 (2010), reh’g denied (July 1, 2010)