In twenty years of practice I have seen otherwise bright, intelligent and articulate people bungle an insurance claim, legally shoot themselves in the foot, or fail to take action on behalf of a child in a timely fashion
and do nothing but increase the profits of a corporate wrongdoer or an insurance company. What follows is general advice that, if followed, will help anyone avoid that mistake.
1. Understanding Insurance Company Claims Procedures
Insurance companies' claims adjusters are professional negotiators, with extensive experience in intimidation, "hassling," and using every psychological technique to maneuver a claimant into settling for the lowest possible dollar, including discouraging people from using the professional services of a lawyer.
Never violate this basic rule: never give an oral statement to the other sides insurance company. If you do, you will regret it. Claims adjusters are hired because they "sound good" over the telephone and they are extremely well trained by company lawyers to ask questions in a manner designed to hurt you and help them. You cannot beat an expert at their game. Do not try it.
Claims adjusters know that if they can keep a claimant negotiating with the adjuster then there is a high probability of a successful settlement in favor of the insurance company. Anyone who negotiates directly with a carrier, by definition, cannot file a lawsuit and is therefore not to be feared. While this sounds like an ad for lawyers, the truth is that studies have shown that experienced lawyers can negotiated settlements that are multiples of what individual claimants can negotiate for themselves.
To successfully negotiate a claim with an insurance company the basic rules of negotiation MUST be followed.
First, set a realistic goal before you begin negotiating. This is critical. Do not begin a negotiation until you are absolutely sure that you know the full extent of your injuries and damages. If the damage has not run its course or if there is a chance of future damage yet to unfold, do not begin a negotiation. It is too early.
Second, just because an insurance adjuster calls and talks does not mean you have to talk. Do not get into a discussion, no matter how tempted you may be to do so. Use the occasion to listen and when its over say: "I will think about it and get back to you." Do not say: "let me think about it."
You do not need permission to do anything in a negotiation when you have been damaged.
Three, never bid against yourself or always negotiate in turn. If you make a "demand' [an offer to settle by a claimant], then wait until the carrier makes an "offer." In other words don't make a demand for $15,000 at the beginning of a conversation and then at the end tell the adjuster you will take $10,000 today. All that you will have done is to PROVE to the adjuster that you are a greenhorn that can be had for much lower a price. If your demand is $15,000, wait for the carrier to make an offer.
Fourth, take your time. When you receive an offer, think about it. Do not respond immediately.
Fifth, do not listen to anything but the number. Insurance company adjusters take courses written by psychologists to use words and approaches that will give them the upper hand. They may sound nice on the phone, but these folks are professionals who eat claimants for breakfast. No matter what they say, ignore the words. The only thing that counts is the number. Once you hear the number end the conversation: "I will think about it." Then go think about it before calling back with your responsive demand.
2. The Time Bomb: Deadlines on Filing Suit
Every state has statutes of limitations and procedural requirements that place deadlines on when you can file a lawsuit. Statutes of limitations differ from state to state and depend also upon the nature of the claim. I do not know the statutes of limitation in all states. Statutes of limitations differ depending upon the nature of the lawsuit or claim.
If you wait until the deadline for filing your lawsuit has passed, your suit will probably be barred forever.
3. Preserving the Evidence
Take two rolls of film of the accident location IMMEDIATELY after a crash from every conceivable angle and location. Lay a yardstick next to skid marks so someone can readily compute actual distances based on the photograph. Look for IMPENDING SKIDS. Tires just don¹t begin skidding. As a braked tire begins to skid it first leaves faint marks on the roadway known as impending skids. Measure and photograph these marks. They disappear within 48 hours so move quickly to record them. An impending skid and a skid mark when taken together gives a very accurate report of the actual speed of a car before a brake application.
Take distant and close up photographs of scenes and objects from every point on the compass. When in doubt, take another set.
You cannot take too many photographs of the aftermath of a collision, explosion, fire or other loss.
Remember that all evidence must be secured immediately. Never be afraid to buy wreckage and if anyone should have second thoughts about buying a wrecked Bronco, a Jeep that rolled or a vehicle that has a gas tank that failed, keep in mind that it is comparatively inexpensive to buy a wrecked car, for example, compared to the value of a successful product liability case and if worse comes to worse it can be sold, but once it is lost it is gone forever.
Once you gain ownership of the defective product, lock it up in a facility
that you control. Never assume that no one will want the wreckage of a destroyed automobile. In two cases against BMW alleging the gas tanks in models 1600 and 2002 were defective, the hulks mysteriously disappeared. In another case in which a four teenagers burned to death in a 1978 Dodge Ramcharger equipped with a plastic tank, an investigating service believed to have been retained by Chrysler Corporation appeared at a wrecking yard before the funerals and offered to buy the burned hulk. In the case of the BMW, investigators for the car manufacturer photographed the evidence six months before the injured plaintiff retained his own attorney. Major manufacturers carefully read newspapers and whenever possible secure evidence to deny plaintiffs the ability to pursue claims.
If the evidence cannot be bought, at a minimum put everyone on notice by certified mail, including owners, tow operators, wrecking yards, police impounds, and the like, that they must take every step to preserve important evidence and the failure to do so will subject them to being sued for allowing evidence to be destroyed.
When the product is in the possession of a third party or one of the anticipated defendants, hire any lawyer to immediately file an independent action for a temporary restraining order and a preliminary injunction to avoid alterations or destructive testing. The temporary restraining order should be carefully drafted so that anyone receiving notice of the order and in control of the article will be required to deliver it to the possession of a neutral person and to initiate preventive measures against damage in transit.
Always preserve written materials that came with a product: packaging, inserts, manuals, warranties and similar written materials.
Lastly, let no one destroy, throw away, or leave behind anything that is part and parcel of the any product.
Photograph the location where evidence is found and then remove it for safe storage.
4. Make a Record
The corollary to preserving evidence is to also document damages. Report physical injuries to doctors, emergency rooms and obtain appropriate medical treatment. Appropriate treatment is that care recommended by a doctor. Do not substitute your judgment for that of an experienced medical professional. If you do, it will be used against you whether you over-treat or under-treat.
Do not hesitate to "get checked out" when you feel "O.K., but shaken up." Many times the onset of physical complaints begins 12 to 24 hours later.
Maybe you did walk away from being rear-ended by a truck and only feel "shaken up." But tomorrow morning when you get out of bed it may be different. See a doctor following the collision will insure a preliminary diagnosis and perhaps minimize the discomfort and future treatment you may need later.
When reporting to doctors, take extra care to identify specific complaints. If something does not feel "right" it should be documented in your medical file and provided to your physician in order to allow the doctor to render an informed medical opinion. Even though you feel it is "no big thing" now, several weeks from now when the minor crick in your back blows out and becomes a fully ruptured disk requiring major surgery it will have been far better to have the initial medical entry in order to allow an orthopedic surgeon to opine that the onset of the fracture to the outer wall of the disk was the initial insult, not bending over at toilet three weeks later, as the defense will argue to the jury.
Lastly, keep receipts of everything and maintain a calendar of post-accident events that will help you recall later the days you could not work, were unable to enjoy your leisure time or spent Saturday at the physical therapist.
No matter whether it is a personal injury claim or any action in which you are the plaintiff, keep a fully detailed record of the harm you suffered.
