If you’re involved in an accident that wasn’t your fault and you suffer injuries, it’s possible that a claim representative from the at-fault person’s company may contact you immediately afterwards and try to settle your claim. Be careful dealing with the insurance company on your own, because you may need an experienced personal injury lawyer to help you. Many people have settled their claims shortly after an accident, only to find out later their injuries are much more serious than they thought when they settled.
You probably don’t need an attorney if your collision is a simple “fender bender” and you aren’t injured, or if your injuries are truly minor. If your minor injuries heal quickly, you have only one or two visits to the doctor, and you have only a small amount in medical bills, you may not need an attorney. My Firm’s attorneys regularly meet with people who we advise they don’t necessarily need an attorney and can probably handle the claim on their own. Of course, some people just don’t feel comfortable trying to handle the claim on their own, and then we can assist them, too.
However, if you are hurt and unrepresented, and not familiar with claims, the hardball tactics used by some claims representatives can leave you feeling like you’re not getting all that you are entitled to, or that you are being taken advantage of in the process. Settling quickly may not be in your best interest depending on the type of injury you sustained and the type of treatment needed to recover from your injuries. What you don’t know can hurt you.
We see clients who try to go up against the insurance companies alone because they want to save money by not hiring an attorney; that way, they don’t have to pay the 1/3 contingency fee that personal injury attorneys usually charge, so they think they are saving money. Or they think it is easy and they can do it themselves and get the same amount of money. Those clients that hire Allen & Allen later, after they find they cannot settle their claims, often come to us because they were victimized by the “hard ball” tactics of some insurance companies.
The claims representative for the liability insurance company (the adjuster) is a trained professional whose job is to have your claim cost the insurance company as little as possible. That means for you to get as little as possible. When you don’t have an attorney, the adjuster knows that you are probably not familiar with the claims process or your legal rights, and that you have some reluctance to go to an attorney.
The adjuster will tell you they will work with you and that you do not need an attorney. In insurance company language, this is called “controlling the claim”. The adjuster will also tell you that all they need to get things started is your recorded statement to determine liability, or that their insured has not reported the accident so they need your version of what happen. Then the adjuster will ask a number of questions about how the accident occurred, property damage, your injuries and prior health condition and your personal data. If you give a recorded statement, you are simply giving the insurance company ammunition that they will later use against you in settlement negotiations and any future lawsuit. What you say can and will be used against you by the insurance company.
When the adjuster requests a recorded statement, they don’t tell you that you have a right to refuse, or that you are entitled to a copy of your recorded statement. Often time by the time a client retains Allen and Allen, the claim rep has not sent the plaintiff a copy of their recorded statement and they don’t have a copy of their recorded statement so we have to request a copy for our files and the plaintiff.
In addition to the recorded statement, the adjuster will also ask for personal information. The adjuster will use this personal data to check your record (or “claims history”) with a claims index data bank that is maintained by the insurance industry. The claims index data bank contains information about your prior claims and prior injuries. Unlike other data banks like your credit score, the claims index data bank is not available to plaintiffs and their attorneys – and you can’t get a copy.
Pre-existing conditions and prior claims are fertile grounds for the insurance company as an excuse to make a low offer in your case. By the time the adjuster offers to negotiate a settlement with you, the adjuster will already have access to the claims index data bank containing your prior claims and pre-existing health conditions. The adjuster uses the prior claims and pre-existing conditions as justification to reduce the value of your current claim by claiming the collision didn’t cause your injuries because you had already had an injury to that part of your body, or that the limitations on your activities caused by the accident weren’t that serious because you had prior health issues that already caused you to have limitations.
If you had a neck or back problem in the past and receive “maintenance” chiropractic care, the insurer will claim you have a continuing problem even if you haven’t had any pain or problems in years. If an x-ray or MRI shows that you have degenerative joint disease or degenerative disc disease, these pre-existing conditions become a weapon to reduce the value of your claim. In fact, these conditions are merely part of the natural process of aging and “wear and tear” on your spine; by age 50, more than 85% of the population will have signs of these conditions, but the vast majority will have no symptoms at all! In looking for an excuse to pay you less for your claim, the adjuster will focus on these prior problems and conditions, regardless of whether the problems occurred in close proximity to the time of the collision, or even whether it involved the same body part injured in the collision.
In addition to the recorded statement and personal information, the claims representative will also ask you to sign a medical authorization for the insurance company to obtain your bills and medical records from the collision. Often the adjuster will use this authorization to also obtain your prior, unrelated medical records. Sometimes the adjuster will request video surveillance of your activities. If the adjuster thinks any of this information is different or contradicts anything you told the adjuster about your injuries and preexisting conditions, they will use it an excuse to pay you less. If the adjuster thinks you are “over treating”, then you must be exaggerating your injuries so that’s a reason to pay you less. If the adjuster thinks that you are “under treating”, that is, not following the doctor’s advice or keeping appointments, then you must not be hurt as bad as you say you are, so that’s an excuse to pay you less. You can easily hurt your case. By the time the adjuster makes you an offer, they know more about your injuries and health conditions than you do — thanks to your recorded statement, the claims index data bank and access to your medical information through your medical authorization.
Allen & Allen can help you navigate through the claims process and avoid losing money which you may be entitled to but unable to obtain from the insurance company if you are unrepresented. Before going up against the insurance company alone, ask yourself: “Am I prepared and knowledgeable enough to handle this on my own without an attorney?” Of course, the extent of your injuries and the effect on your health and activities is important also. The more serious your case is, and the more you have at risk, the more you have to lose. What you need to determine is simply this: “Am I going to come out better or worse with an attorney?”
I and the other attorneys at Allen & Allen can help you answer that question.
 If you are seeking benefits from your own insurance company like “medical expense” or “medical payments”, you may not be allowed to decline giving a recorded statement to your insurance company. Under these coverages, you have a duty to cooperate with your company; if you refuse to give a recorded statement, your insurance company may say you are not cooperating and therefore not entitled to these coverages under your policy. See The Recorded Statement: A Trap for the Unwary
 Virginia law requires the insurance company send you a copy of your statement if you request it. See Virginia Code §8.01-417, at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-417.
 See more information about this database at https://www.allenandallen.com/blog/insurance-index-data-base-system.html.
 “By the age of fifty, 85 percent of the population will show evidence of disc degeneration or spondylosis. Of course, the vast majority of these cases are without symptoms. It is only the patients who develop symptoms, chiefly low back pain, that need treatment.” From the Chicago Institute of Neurosurgery and Neuroresearch, at http://www.cinn.org/spine/disc-degeneration.html.