DEALING WITH ANOTHER PARTY'S INSURANCE
You really need to consult with an attorney before you give a statement to the other party’s insurance company. It’s a really important part of the process, and it will be used against you should you say something that hurts your case, either as to how the incident happened or how your injuries have affected you. What you need to look at is why did the adjusters want to take your statement? The answer is to lock you down on your story. Do they really need to hear from you about how the wreck happened? Chances are no. They’ve probably already heard from their own driver as to how it happened if it’s a car wreck or their own business if it was a premises case.
If you give them your statement, while you are usually not under oath, you will likely be asked if your answers are true or correct to the best of your knowledge at some point during the recording; and because of that, it’s likely to be used against you. So why would you want to help them do that? The things that are said in a recorded statement can be taken out of context and used against you. For example, a recent client was rear-ended at an intersection, which resulted in over $6,000 worth of damage to the rear of her car and over $4,000 damage to the front of the defendant’s car. She was not bleeding and did not ask for an ambulance due to her concerns about how it would be paid for.
The defendant asked at the scene if she was “okay”, and she responded that she was. So her answer was that she was okay but what was that based on? Compared to what? She had just been rear-ended while stopped with no indication that she was about to get hit. She thought she could have been killed, could have broken her neck, and could have been in the hospital for days and unable to work, unable to play with or care for her kids: All these thoughts ran through her mind right after the wreck. So when asked about how she was doing when she got out of the car, she said she was okay. Compared to what she could’ve been, she was okay, but that doesn’t mean she was free of injury.
So how does that play out? A year later, in her deposition, the lawyer for the at-fault driver pulled out her recorded statement and pointed out to her that she said she was okay at the scene, so therefore there must not have been a significant injury. Another thing is that people sometimes are too forgiving of the actions of others. I’ve had recorded statements where the injured person bent over backward to point out that the defendant didn’t mean to do it or it could’ve happened to anybody; and while these are nice things to say, these quotes can come back later and be used as an excuse to deny responsibility for your loss.
When you go to trial in these cases, the question is always about negligence. Negligence is a hard, mean-sounding word, but that’s what has to be proven to win at trial. If you give a statement right after the wreck stating that no one was at fault or negligent, it’s going to be used against you at trial.
WHAT FACTORS CONSTITUTE A VIABLE PERSONAL INJURY CLAIM?
A long time ago a lawyer much older and wiser than me explained to me the concept of the three-legged stool. For a stool to stand on its own, you have to have a minimum of three legs. If any of those three legs is missing, then the stool will fall over and not support the weight that you place upon it. The three legs of a stool necessary to have a viable personal injury claim are:
Leg 1: Liability, which is how it happened and why it’s someone else’s fault. This includes the carelessness or the violation of safety rules that caused the injury.
Leg 2: Damages, which is how it has impacted you and that’s where we talk about your injury, your medical expenses, your impairment, your lost wages, the way this has affected your personal life, your family and your work life.
Leg 3: The ability to pay, which is usually determined by the availability and the amount of insurance. The ability to pay leg generally depends on the level of insurance, how much of it there is or if there is a corporate payer. If you have your choice and you are going to get hit, you want to get hit by someone who has the ability to pay you. Truck wrecks have a tendency to result in larger settlements because they have larger insurance policies. If you are hit by someone with no insurance, then they likely don’t have the ability to pay you; you may have a million dollar loss, but that doesn’t mean you have a million dollar lawsuit against the person that caused you harm if he doesn’t have the ability to pay you. The damages kind of speak for themselves. You have to have damages in order to have a claim.
What I tell my clients is if you stop at a light and a drunk driver blows through the light going at 80 miles an hour and almost hits your car, you almost have a claim because you weren’t injured or you weren’t damaged and it hasn’t impacted your life. Finally, the liability, which is who is responsible for the rule violation or the fault that forces the other person to pay, is usually what we end up fighting about. How an incident happened is always the source of a lot of difference of opinion, depending upon whether you were the bad actor or the victim. Those are the three things that you have to look at; and if one of those legs of the stool is missing, weak or damaged, then that’s going to be the part of the case that the insurance company and the defense lawyer focus on to prove your claim is not liable.
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