Posts Tagged ‘Auto Accident’

Insurance Investigators and Your Claim: The Case of the Irritating Investigator

A Typical Insurer's Private Investigator (no, I'm just joking . . . )

A LETTER FROM THE INTERNET: I’m often asked about the role of ‘private investigators’ in personal injury claims.  In response, here’s a letter that I responded to on Avvo.com, a web-based attorney information service that I participate in, that might interest readers:

“hello,

i was involve in a car accident. i know that sometimes insurance companies hire private investigator if they think that there is a fraud or the case amount is high. i was wondering what is high amount?

thanks
emmy”

SETTING THE RECORD STRAIGHT ON INVESTIGATORS:

Here’s my answer to Emmy’s letter:

Dear Emmy,

Sorry for your accident. Of course, my naturally suspicious mind is driven to this question: why are you worrying about an investigator? In the words of most defense attorneys and insurance adjusters: ‘Do you have something to hide’?

WHAT A PRIVATE INVESTIGATOR DOES: To answer your question more seriously: having worked as both a defense lawyer, representing insurers, and as a plaintiff lawyer representing injured persons, I can tell you with some measure of certainty that there is no ‘high amount’ that triggers an investigation. The insurance adjusters will deploy investigators when a claim ‘looks’ suspect (for an extreme and somewhat exaggerated example, a person with a sprained pinkie saying that they’re disabled for life will likely be subject to surveillance if there’s an ongoing claim). The decision to send out someone to follow a claimant and see how they’re spending their time in real life is based on subjective criteria, and, in my experience, is often left to the adjuster’s discretion.

DOES “SIZE MATTER”: Of course, if a claimant is seeking minimal compensation, an insurer may decide that it’s not cost efficient to spend $2,000 – $3,000 to deploy an investigator, and might decide to settle the claim at a low level rather than incur that cost on top of the settlement cost. However, increasingly insurers seek to ‘send a message’ to claimants by aggressively investigating what they feel are suspect claims.

These ‘investigators’ are an annoyance. They’re hired to develop evidence, whether by observation or often by photograph or video, that a person isn’t as badly injured as they claim. In my practice, from both sides of the aisle, I’ve rarely seen an investigator hired by an insurer who was an accurate, independent, direct and honest reporter of what they observe.

THE INSIDER’S GUIDE TO INVESTIGATORS: More often, in my experience, these ‘investigators’ (really, paid spies) recognize who’s paying the bill, and rather than acting as independent witnesses, they turn themselves into advocacy witnesses to try to help the insurance companies or defense firms who pay for their services. These ‘investigators’ (sometimes retired adjusters; often, retired or disabled former law enforcement or private security officers) often hide or selectively record evidence of a claimant’s activity in an effort to try to ‘amplify’ the actions of an allegedly injured person. In other words, when the person looks healthy, they start the video recorder; when they look injured, they turn the recorder off. Not only that, but insurers and defendants, under the rubric of ‘work product’, try to hide the existence of such ‘spies’ and their videos until the eve of trial (a process I’m very critical of, and which I believe is based on old and discredited practice).

MALIS|LAW PUTS THEIR INVESTIGATORS TO WORK — FOR YOU!: I’ve developed several pre-trial techniques for ‘smoking the investigator out’, and if your attorney is savvy, he or she will know what to do to make sure that there are no rude surprises as you approach trial or settlement of your case.  The good news is that often these investigators can be discredited by good, aggressive cross-examination in discovery or at trial; their bias exposed; and their opinions weakened. Even better, their ‘spying’ sometimes proves disability, rather than disprove it.

In many of my larger cases, I’ve been able to take this investigative evidence and use it to coerce the insurer to pay more for the claim, by showing that the ‘paid spy’ actually learned that my client was more severely injured than even the insurer thought.  MALIS|LAW bloggers can see an example of this in practice in my December, 2009 post about a construction accident case that we settled for $900,000 in total benefits that we already published in this blog, “The Case of the Deleted Defect” .

HONESTY IS THE BEST POLICY; YOU HAVE NOTHING TO HIDE: Despite this pernicious practice, although in my experience these investigators may occasionally disclose someone working when they claim to be disabled, it’s never happened to me or my clients. As I advise clients and others often, an injured person’s best weapon in personal injury litigation is their honesty.  If you can perform an activity, admit it.  If you can’t, tell your lawyer what you can’t do and why.  Ultimately, frank and honest disclosure of the extent of your injury is always to your benefit, and will generally help your lawyer obtain a fair and full settlement for you.

The Case of the Girlfriend’s Grief — What Should a Client Worry About When an Accident Happens?

Boyfriend Hit Someone Crossing Against the Light

My boyfriend who is on my insurance hit a woman crossing against the light. Two witnesses verified that she was crossing against the light on the police report. She was able to get up and walk, but how bad is this going to be for us?

Daniel Malis Says:

Dear ‘Chicago’,

While I’m not a licensed attorney in Illinois, you’ve posed a common general question, so here goes:

1) The bad news: As to your boyfriend’s responsibility for the accident, while it is helpful that the woman was crossing against the light, it’s not determinative of her or your boyfriend’s relative fault for the accident. I don’t know of any state where crossing against the light provides an automatic defense for a driver to striking a pedestrian; or, phrased another way, it’s never lawful to strike a pedestrian who’s crossing a road. However, the pedestrian’s failure to comply with traffic laws by crossing against the light may be a factor a jury or judge would consider in apportioning blame, either by finding your boyfriend not responsible or by allocating a share of the blame to the pedestrian. Other factors will play a part; such as, had the pedestrian just stepped off into the curb or was she well across the street and in plain view of your boyfriend when he struck her? Was she running or walking at a normal pace? Were there obstructions to your boyfriend’s view that might have prevented him from seeing her before it’s too late?

2) The good news: the reason you carry insurance on your car is for circumstances like these. Your insurer will investigate the accident and the injury, and provide you and your boyfriend with an attorney to present your defenses. Hopefully, if her injury is not severe and your coverage adequate, this will be only an inconvenience as to your time, and will not be ‘bad’ at all. The vast majority of these cases settle without anybody but the insurer paying, and well before any trial of the case occurs.

3) As a personal injury attorney who does much more work for injured parties than for negligent parties, I can tell you that it is very rare for a plaintiff (the injured person) to seek or obtain judgments for damages beyond insurance coverage limits of the driver and owner of the vehicle. Such ‘private’ judgments are time consuming, delay payment of insurance proceeds unduly, and difficult to enforce.

You can learn more about how these factors play out in your case by discussing these issues with the adjuster whom the insurer selects to handle your case, and, if necessary, Make sure that the insurer has all of your information so that it can start your investigation.

Sleep easy, and good luck.

The Case of the Indignant Insured — Does an Uninsured Driver Have a Right to Sue?

Does an insured driver have to pay for the damage of an uninsured if I was hit from the rear.

I was charged with failing to yield. I stopped at the stop sign and then preceded to merge into the median when I was hit. The driver of the other car was only charged with no insurance.
I do no see how I failded to yield when I did stop and make sure there was nothing coming. The other driver had to be driving too fast or was doing something other than looking not to be able to see me. Both of us was taken to the hospital and I was told at the hospital that I was charged with failure to yield. Will I be responsibe to pay for the other drivers damages? This happened in South Carolina.

Daniel Malis Says:

The short answer is that your, or the other driver’s, insurance status does not dictate whether or not you are legally responsible for causing damage to another’s car. Your liability is not dependent upon insurance, but upon whether or not you (and the other driver) drove your car with care appropriate for the circumstances (otherwise called ‘reasonable care’ or, when not shown, ‘negligence’).

Fortunately for you, you are covered, which means that your property damage will be paid for; you will receive an attorney to defend you paid by the insurer; they will present your defenses (and, from your recounting, it’s clear that you feel that you have some); and, if your defenses do not prevail, will pay for the damages suffered by the other party up to the limits of your insurance policy.

If you haven’t done so already, put your insurer ‘on notice’ of this accident by contacting them. They’ll take the lead from there.

The Case of the Drunkard’s Damages — What Goes Into a Settlement?

I was hit from behind by a drunk driver in his company truck.my car was totaled and my arm and back was injured.

what is the minimum amount of settlement i should expect?

Daniel Malis Says:

Dear Shreveport,

I’m sorry for your injury and the pain and change of lifestyle you’re probably already experiencing. While it’s a business to myself and my brethren, it’s important for us to remember that for you this is not first an economic issue but one of irreplaceable health.

You’d be surprised how often I hear this question, or the equally important question: ‘what’s my case worth’?

My joking answer, which of course is based in reality, is ‘the maximum amount that an insurer will offer you, and not a penny more.’ The actual answer is far more complex and can’t be answered simply, There are many factors that enter into the value of a case, some obvious, some not.

The obvious ones: you are entitled, in a case of clear liability such as the one you’ve posed, to reimbursement for your past and likely future medical expenses; your past and likely future lost earnings; and out of pocket monetary losses.

You are also entitled to reimbursement for ‘hedonic’ damages, such as the impact the pain of your injury and any resulting temporary or permanent disability and restrictions impose on your lifestyle. You are entitled to the value of services others must render for you if you are unable to carry them out. You are also entitled to receive an award for ‘pain and suffering’, the impossible-to-specifically-calculate value of what you’ve gone through and can expect to go through. The ‘price’ of these items is very difficult to specifically quantify, and will depend upon the extent of your injury; the permanency of your injury and limitations; the objective or subjective medical evidence of your injury (how ‘provable’ your condition is); the relative state of your health before the accident, as compared to after; the kind of work you do, and whether this injury will temporarily or permanently disrupt that work; and many, many other factors.

Having said that there’s no way to quantify these things, experienced trial lawyers do value these claims all the time once the information’s collected, based upon verdict reports; past settlement history; amount of insurance coverage available to pay for your injury; and their own past settlement and trial experience. Valuing a case is awfully tricky business, but a good trial lawyer develops a ‘nose’ for these things, and for emphasizing strengths and weaknesses of your and your opponents’ cases that can be developed, emphasized, or turned to your advantage.

Ultimately, ‘case valuation’ is the ultimate reason why, from a historical perspective, lawyers add far more to the value of a case than their contingency fee reduces your recovery. Get yourself a smart, skilled trial attorney who will advocate your interest and develop this evidence.

Another point to emphasize; if it’s early in the case, there’s almost no way any competent lawyer can ‘value’ your injury in the way you seek, and it’s often counterproductive for you and your life to do so. Often clients ‘suspend’ their life awaiting a big verdict or settlement that may never arrive. Focus your energies not on your expectant settlement, but on treating consistently with your medical providers and getting as recovered as you can, because no settlement can make up for your health.

Best of luck.

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FAQs, Interesting News and Law-Related Rants

Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.