There are cases where some adjusters will
accept what is presented by the attorney
and simply try to negotiate down from
the demand rather than arguing the facts.
When an injury is identified in an auto
claim, the first step should be to examine
the vehicles. Telltale signs such as principle direction of force, metal deformation
or striations can provide key clues to the
veracity of the alleged injuries. In any
auto claim it is important to get detailed
photographs of all vehicles from all angles, with photos that depict all damage.
A good photograph will show the damage in relation to the other parts of the
car. Pictures should be taken from angles,
front to rear and rear to front, and then
straight on. Photos should never be close
up unless there is some key piece of evidence such as hair in a windshield crack.
Photos can always be magnified, but it is
virtually impossible to improve a blurry
photo taken from two feet away.
Attorneys don’t like to argue causation
because that is often a weakness for many
claimants. In a country where the American Medial Association estimates that
80 percent of Americans will suffer back
pain, causation is a very legitimate concern in virtually any claim where back
problems are alleged.
The next consideration is the veracity
of the claimant. According to the Insurance Research Council, insurance fraud
and buildup accounts for 13 to 18 percent
in excess auto claim payments annually.
Who is the claimant?
A good claimant profile is critical to
building a quality investigation. Has the
claimant had prior claims? If so, when?
How many? Was the claimant at fault?
Was there a payment? What were the prior injuries?
Surprisingly, many claimants have
prior serious accidents where they were
at fault, but claimed no injuries. However, when they are not at fault, even in
low impact claims, they suddenly have a
myriad of problems that are all related to
this once incident. It is this type of detail
that will sour a jury on a claimant and
will inspire adjusters to dig for more information.
Look at criminal records. Does the
claimant have prior felonies? Don’t limit the search to the claimant. Having an
insured with a criminal record can pose
just as many problems for the insurance
company as a felonious claimant does for
a trial lawyer.
Years ago during deposition, the defense attorney asked the claimant about
his prior sexual battery conviction. After
a quick kick under the table, I reminded
the attorney it was our insured who had
the conviction and we were trying to
settle this prior to trial for a very good
reason. Some information may not be admissible, but just like a good poker player effectively plays the cards dealt, so too
does the effective adjuster.
Consider the claimant’s financial profile. If this case heads to trial, a proposal
for settlement, offer of judgment or similar document may need to be filed. This
can act as a loser pay law, entitling the
carrier to defense attorney costs with the
right outcome. If the claimant is judgment
proof, this becomes a far less powerful
tool. While most claims don’t go to trial, it is a very effective tool to leverage in
negotiations with the attorney, who is duty-bound to take all offers to the claimant.
Look at the claimant’s professional licensure. In many states, licenses are required for numerous occupations. There
was a claim involving a claimant who was
an exotic dancer, and a city occupational license was required. Surveillance was
ordered, exotic dancing was observed,
and the case went away almost instantaneously. This can be powerful information when professions involving physical
activity are known.
Request a medical history. Depending
on the injury, ask for anywhere from five
to 20 years. Always provide a medical authorization, and offer to do the search as
well. While attorneys probably won’t accept the offer, this demonstrates aggressive good faith claims handling. If there
is a history, it will be discoverable should
litigation ensue, and the attorney will be
well aware of this.
Never forget to check the licensure
status of the plaintiff attorney and treating providers. This can usually be done
through the secretary of state or appropriate governing body in the jurisdiction. Look for prior disciplinary action
and make sure that licenses are in good
Research neighbors and known associates who can provide powerful testimony.
Arguably, some of my best character witnesses were ex-spouses willing to share a
multitude of details, including pre-existing conditions and their causes. Neighbors are also great sources of information
to share information like the injured party routinely does yard work.
Once the veracity of the claimant has
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Rytech_sixth.indd 1 23/05/17 4:41PM