The insurance adjuster is not your friend. The Insurance adjuster may seem nice. Many of them actually are nice, but they are still not your friends.
Adjusters may tell you that they are trying to help you. Some might even seem to be helping you. For example, they might get you into a rental car quickly, or get you to their body shop. However, they are not helping you. They are not paying for anything they are not required to pay for anyway. What they are trying to do is “keep the case under control”. What does it mean to keep a case “under control”? It means keeping you from seeing a lawyer, so that the insurance company remains in “control”. While they have the case under control, they will try to do all manner of things to harm your case in the long run. Almost immediately, they will seek to take a recorded statement. Many of my clients have already given a recorded statement before they have come to see me. They tell me that it was no big deal. All they did was “tell the truth”. That is true. The problem, though, is that early on when they are speaking with their “friendly” insurance adjuster, it is only natural that people will down play their injury. Part of that is psychological. They do not want to seem whiny. Part of it is physical. Sometimes you simply feel worse a day, two days, a week or even a month after the accident than you felt the day of the collision. Sometimes it is because their “friend” the insurance adjuster has managed to guide their interview in such a manner as to downplay the injury. One common trick is to ask questions about what is not wrong, so that the interview reads like you are saying everything is great. There are many others.
The other problem is that it puts one version of events coming from you in words and ultimately on paper. When you filled out your operator’s report, that gives you another version. If the case goes to court, the deposition will be another version, and your trial testimony, another. Even people who are “telling the truth” will not tell the truth in the exact same words on multiple occasions at multiple times. Any time your testimony varies, that gives a skillful insurance company lawyer an opportunity to accuse you of, interestingly enough, “not telling the truth”. By the way, you cannot win at this game. If you were to tell your story word for word the same way, every single time, the insurance company would accuse you of being too rehearsed and thus making it sound contrived. The solution to this problem is very simple, reduce the number of versions of your story by not giving the statement to your “friend” the insurance adjuster.
Another unfriendly thing that your “friend”, the insurance adjuster, might do is try to steer you to their preferred body shop. In Massachusetts, such direct steering is illegal, but it happens. Such steering seems to be happening more now than in the past. An insurance adjuster in Massachusetts is not allowed to recommend a specific body shop, but they are required to give you a list of all the “registered body shops” in your county. I have written a blog on the importance of going to a registered body shop. However, a new phenomenon has emerged known as “preferred shops”. There is no advantage to the consumer of going to a preferred shop. The insurance company is required, by law, to negotiate in good faith on the cost of repair with any registered shop. If they are unable to agree on a price, then the body shop and insurance company will go to arbitration. At no point will it be the customer’s problem. With preferred shops, the insurance companies are using the preferred shop designation to drive business towards the preferred shop, and in exchange the preferred shop agrees to keep the cost of the repair down. That is problematic for a number of reasons. Sometimes keeping the cost of the repair down involves not doing a repair that should have been done, or using a little extra bondo in making the repair instead of simply doing it right. It is problematic from the point of view of an injury case, as the insurance company will try to argue that the lower cost of repair translates into a lower level of injury. The argument is scientifically and medically invalid, but nevertheless they often times have some success with it.
Another thing your “friend” the insurance adjuster will do that is not particularly friendly, while the case is still “under control”, is try to get you to go to their doctor. This is less of a problem in Massachusetts than it is in other states, but the problem still persists. In Massachusetts, the auto insurance company is required to pay your medical bills, no matter what doctor you see. Also, since we have always had a relatively high rate of insurance coverage, most people already have a primary care physician. Since people should see their family doctor after an accident, it is hard for the insurance company to steer people to its preferred doctor. Nevertheless, I am aware that some insurance companies in Massachusetts still have “preferred provider networks”. It is hard to figure out what the advantage of a “preferred provider network” would be to a person injured in a Massachusetts collision. However, it is easy to see what the advantage would be to the insurance company. The preferred provider would certainly be minimizing the amount of testing done and the amount of treatment administered. The preferred provider would be incentivized to keep your medical bills below the Massachusetts tort threshold (the amount of medical bills needed to bring a claim in Massachusetts) of two thousand dollars ($2,000.00). In every way the preferred doctor would be incentivized to minimize the amount of treatment that you receive. Being with a preferred provider would actually be worse than being with an HMO. At least with an HMO, the insurance company has an interest in your long term health and wellbeing, and your provider has a relationship with you. With a preferred provider, or other insurance company doctor, the insurance company has no interest whatsoever in your long term health and wellbeing, and the doctor has no relationship with you and does not intend to form one. These problems are fairly common in the area of worker’s compensation when the employer immediately takes the employee to a company clinic, instead of their own doctor.
A really unfriendly thing that your “friend” the insurance adjuster may do is try to get you to sign a general release when a general release is not appropriate. For example, I had a case in which my client’s car was totaled. The insurance company made an offer for the car to my client which my client accepted. The insurance adjuster mailed my client a general release for the amount of the property damage. A general release releases all claims related to the accident, including claims for rental coverage, and more importantly, claims for bodily injury. Fortunately, my client came to hire me before signing the release, and asked me to review it.
The adjuster who mailed the release was one I knew very well, and never particularly cared for. I gave her a call and told her exactly what I thought about what she had done. Interestingly enough, she denied that she sent a general release and insisted that she would “never do such a thing”. I told her that she did, and that based upon our past dealings, I had some difficulty believing that she would “never do such a thing”.
We had a rather stormy conversation which at some point ended. Five minutes later she called me back, apologized and told me she made a “mistake”. She was a part of a team of four adjusters at her insurance company, and I had always gotten along well with the other three. Ten minutes after that conversation ended, I received a phone call from one of the other adjusters on that team. She apologized and explained that the first adjuster had been under a lot of stress and assured me that it was simply a “mistake”. The first adjuster is not nice, although she seemed nice when talking to my client. The second adjuster is actually an extremely nice person, whom I happen to like a lot personally. Neither of them are my friends. Neither of them have ever been a friend to anyone they have ever been on the other side of a claim with. Whatever I might think of either of them personally, they are both well trained in how to do their job. Their job is to resolve these cases for as little money as possible.
Another unfriendly thing that your “friend” the insurance adjuster may do is ask you to sign a general medical authorization. They will tell you that this is simply so that they can get the medical records related to your accident. However, that is not what a general medical authorization does. It actually allows them to go trolling through almost every aspect of your medical history, going back as far as your doctor still has records. This enables your “friend” to tell you that some of the problems that you are having now may be because of a sports injury that you had twenty years ago from which you have completely recovered, or that it may have something to do with the fact that there is a history of arthritis in your family. It may also enable your “friend” to find out about some embarrassing fact that is in your medical record. Then the adjuster will warn you, in a friendly sounding way, that you may not want to pursue this claim. It would be really unfortunate if all of this came out in court. It almost certainly would not come out in court. More importantly, if you never give them a general medical release, they never would have found out about it.
Another unfriendly thing that your “friend” the insurance adjuster may do is try to settle with you quickly and, of course, cheaply. There are a number of problems with a quick settlement. First of all, in the first weeks after an accident, you really cannot know how badly hurt you are. Sometimes, problems do not go away within a few weeks or even a few months of physical therapy. Sometimes that annoying tingle in your hand or that little click in your knee does not get better, but instead it gets worse. The same may be true of your headache. It is very common for the biggest problems to be missed altogether in the first few weeks after an accident, because they are masked by the pain of the more acute sprain type injuries. Once you have signed a release, the case is over.
The other problem is that they may tell you that they are offering you the same thing that they would offer you if you had a lawyer, but that is usually not true and even if it is, it does not matter. It does not matter because what they offer the lawyer is not what the case then settles for. It is just the beginning of the negotiating process. Many times, the insurance adjuster will leave things out of the offer, and the burden is on the lawyer to put them in. The most common example is medical bills paid by health insurance. Insurance companies like to pretend that the collateral source rule does not exist. One of my favorite examples was an adjuster, who actually worked at the same company as the adjuster in my story about general releases, who I had an uninsured motorist claim with. My client had five thousand dollars ($5,000.00) in medical payments coverage, and she had paid out that $5,000.00. When she made her first offer, she took a $5,000.00 “MedPay offset”. Logically, I suppose it made some sense. She was the first party adjuster for the medical payments coverage, and she was the first party adjuster for the uninsured motorist claim. A lot of people, including a lot of lawyers, would just assume that she would not have to pay those $5,000.00 of medical bills under each of the two separate sections of the policy. However, legally she does. I said to her “There is no MedPay offset”, and she replied “oh yes, you are right”, and immediately tacked on the $5,000.00. So she made me an offer with the $5,000.00 MedPay offset same as she would make it to anyone else, but I caught it. They may also make offers based on excessive reliance on the amount of damage to your vehicle, pre-existing medical conditions or faulty liability arguments. They do this to me too, but I know how to handle such arguments. Settlements will commonly double or triple the original offer.
Although the adjuster may begin by making lowball offers, but they will eventually come to a decent place if forced. Cases where they have a lowball repair bill from their “preferred shop” will start with a lowball offer. However, there are a number of ways of showing that the repair bill is not reliable, and even if it is reliable, it does not matter. Almost everybody has some manner of a preexisting condition which will cause the insurance company to lowball the first offer, but those too can be rebutted. For example, there is not a middle-aged person on the planet whose spinal MRI would be perfect. All of them are going to have some amount of “degenerative disc disease”. However, most of us have no symptoms of degenerative disc disease (“DDD”) whatsoever. As a result, when an adjuster sees DDD on an x-ray or an MRI report, they get all excited and lowball the first offer. Then, the burden is on the lawyer to show that the DDD is irrelevant. So this is why I say that the adjuster might make me the same offer that they make you, but it does not matter. The second part of that, though, is the underlying premise is false. Of course they do not make the offer to an unrepresented person that they would make to a represented one. The unrepresented one carries no credible threat that the case is going to go to court. If they are dealing with an unrepresented person, then they know that person is not willing to fight. That person has bought into the line that the lawyer is not “worth the cost” and might not understand the contingent fee system and think they have to pay money up front, when they do not. Whatever the circumstance is, the adjuster knows that they have the case “under control” and as such, why on Earth would they make a reasonable settlement offer? If you are thinking that the answer to the question is because the adjuster is your friend, then you are wrong. The truth according to a study by the Insurance Research Council is that cases in which a party is represented by an attorney settle for 3½ times what unrepresented people get.
Another unfriendly thing that your friend, the insurance adjuster, might do, especially now that you have become such good “friends”, is start to suggest to you that you may be partly at fault. By the time that the adjuster is talking to you, they have come up with a different version of events from what actually happened. Sometimes that version of events has come from their insured. Sometimes they just make it up, but they have a different version. I say sometimes they just make it up, because I have actually had cases where we were fighting over liability. The insurance company claimed that their insured was asserting all kinds of things. We ultimately filed a lawsuit, and at deposition, their insured denied ever making such a claim as to how the loss occurred.
In cases in which there is no collision coverage, we would have to advance a property damage claim through an at-fault insurance company. The at-fault insurance company almost always suggests that there is some amount of comparative fault on the part of my client. They do this hoping that the person will accept some liability, so that they can get money to get their car fixed, and then be stuck with this idea of having some liability when it comes time to settle the bodily injury claim. If they are still trying to do that to me, I can only imagine what they are doing to unrepresented people. It appears from what I read that they do this all of the time. It is not even that difficult to make the argument. There is almost always something that you could have done to prevent the accident from occurring. Even in a rear-ender, you arguably could have been watching the rearview mirror. Seeing that the person was about to hit you, you could have moved forward a little bit or honked your horn or done some such thing that the insurance company can imagine you might have been able to do. Your failure to do so does not make you negligent in any way. Your “friend” is very skilled in making you sound like you were. Thus, your “friend” will tell you that you should discount the value of your case or perhaps walk away altogether. They might even tell you they are doing you a favor by giving you a couple of thousand dollars just to save them the aggravation of keeping the file open. They will tell you that because they “like you” they would rather give the money to you than give it to a lawyer to fight you. Rest assured, they do not like you. As a matter of practice, insurance companies do not make “nuisance offers” on cases that are not in court. They rarely make them on cases that are.
I have on my staff a woman who was an insurance adjuster at Liberty Mutual for twenty-five years. Until she came to work for me, I had been fighting with her for as long as I had been a lawyer. She is a very nice person. I have always liked her. We settled almost all of our cases together. I can certainly see where a person who was in an accident and spoke with her would like her and think of her as a “friend”. Now that she is in my office, she is your friend. As much as I liked her, and I liked her enough to offer her a job when the opportunity arose, I always knew that she was not my friend. I always knew that she was just doing her job. For her, her naturally friendly demeanor was something she was able to use as a tool to assist her in doing her job. Unfortunately, her job was to settle the cases for as little money as possible. In all of our years of sparring with each other, including many hours of friendly “chit chat”, I never forgot that fact.
By the way, it may interest you to know that the last case we had together did not settle. We had a liability dispute and she tried to settle the case with me 50/50 based on her insured’s version of events, even though her insured’s version of events was obviously wrong. In this case, somebody changed lanes. The physical damage to the vehicles will not tell you who changed lanes. My client was halfway behind her insured and on her insured’s passenger side. That means that my client was in her insured’s blind spot and her insured was in my client’s clear view. In fact, her insured’s vehicle was less than five feet from where my client was sitting before the lane change. What is more, her insured was almost eighty. He said my client changed lanes. My client said that her insured changed lanes. She tried to tell me it was a “he said/she said”, but I knew better. She had already come to work for me when the case went to arbitration. We won and she still has not heard the end of it.