Most people only deal with insurance salespeople or perhaps their own insurance agents, and for the most part, these interactions are very positive. The pleasant exchange has less to do with the insurance company being “on your side” and more to do with the fact that the company must have insurance premiums in order to turn a profit, and therefore it needs as many happy customers as possible.
When people file claims, they deal with insurance adjusters. Whereas agents and salespeople need to say “yes” as much as possible for the company to make money, adjusters must say “no” as much as possible to deny as many claims as they can. This attitude is especially prevalent when the adjuster is from another driver’s insurance company, because since there is no customer to keep, there is no reason to be nice.
The antagonism goes up another level when insurance company lawyers take over, and that usually happens as soon as victims’ attorneys send demand letters. Even in civil court where the burden of proof is low, these lawyers have a number of tools to reduce or deny compensation to accident victims.
Pretrial Tactics
The insurance company’s drive to reduce compensation starts with the victim’s first phone call. Curtis Quay, a personal injury attorney and partner at Injury Trial Lawyers, APC, advises accident victims to be cautious when speaking to an insurance company. Telephone adjusters are trained to ask questions which elicit answers that can be used against the victims later, and many victims do not realize that they made incriminating statements until it is too late. Even though these statements were made out of court, they are usually still admissible under the statement-against-interest exception to the hearsay rule. According to Mr. Quay, “it’s always best to first speak to an attorney to understand your rights.”
On-site adjusters take a similar approach. They often visit victims in the hospital to “see how they are doing,” and they hope that the mildly sedated or still-in-shock victims will say things that they will regret later. If on-site adjusters view property damage, they almost invariably grill victims about any pre-existing damage and imply that the company is not legally responsible for such damages.
Once medical treatment is at least substantially complete, most attorneys send demand letters to insurance companies. These letters propose settlement offers based on the injuries sustained and the facts of the case. Legally, insurance companies usually have about thirty days to respond to these letters with a reasonable counter-offer. However, “reasonable” is a highly subjective term, and since insurance companies know that victims aren’t working and have no current income, they usually make the lowest reasonable offer.
If attorneys must file suit to obtain fair compensation, the hostility usually always increases. A few insurance companies honestly try to work things out and reach reasonable out-of-court settlements, but others bitterly contest every court filing and request voluminous amounts of documents during discovery, even if they are only tangentially related to the accident.
Contributory Negligence
Many times, these pretrial tactics are not enough to derail the victims’ cases and force them to settle on less-than-favorable terms. So, the insurance companies turn to legal arguments. It is usually easier for these lawyers to shift part of the blame to the victims to reduce compensation, as opposed to denying it altogether. These fact situations are quite common as well. For example, the tortfeasor (negligent driver) may have been intoxicated, but the victim was speeding, and so both drivers are at least partially at fault. Fortunately for victims, the rules in California are very plaintiff friendly in this area.
California is one of only nine pure comparative fault states which divide damages based solely on the percentage of liability. In multiple fault cases, the jury must divide liability on a percentage basis. In the above example, assume the victim’s damages were $100,000, and the jury divides liability 50-50 between the intoxicated tortfeasor and the speeding victim. In California, the victim would recover $50,000, or 50 percent of the total. However, if this same trial and same result occurred across the border in Nevada, the victim would get nothing, because the Silver State has a 51 percent threshold.
Many people criticize the pure comparative fault model, since theoretically, a victim could be 99 percent responsible for his or her own injuries and still recover damages. Nevertheless, this rule appears to be here to stay, as lawmakers have shown no signs of reconsidering it.
Sudden Emergency
Comparative fault shifts blame, but the sudden emergency rule flips liability. This scene from 1995’s Tommy Boy illustrates both prongs of the sudden emergency defense.
- Unexpected Event: Not all uncommon occurrences are “sudden emergencies.” Debris in the road, cars that stop short, and pedestrians who jaywalk can all cause drivers to swerve violently or brake suddenly to avoid crashes, but since these things happen frequently, they are not “sudden emergencies” in the legal sense of the phrase. On the other hand, the hood fly-up in this clip is a sudden emergency, and the same can be said for tire blow-outs and other similar situations.
- Reasonable Reaction: Even though the hood fly-up was a sudden emergency, notwithstanding the fact that Tommy may have been responsible for said fly-up, the defense would not apply in this clip, because Tommy drove recklessly after the hood flew up. The reasonable reaction to such events is to pull over to the right, but if Tommy behaved reasonably, the film wouldn’t have been a comedy.
Sudden emergency’s cousin is the last clear chance defense, and it sometimes applies in rear-end collision cases. If an otherwise careful driver had a reasonable opportunity to avoid a crash but failed to do so, that driver is negligent. Bear in mind that the driver must have the last clear chance to avoid the wreck, which is not the same thing as the last possible chance.