The Recorded Statement: A Trap for the Unwary

Author: Attorney Elizabeth Morrell Allen

You’ve been in an auto accident that wasn’t your fault. Within a few days, an adjuster for the insurance company of the guy who hit you calls on the telephone. The adjuster wants you to give a recorded statement telling her how the accident happened and also asks you to provide some personal information. She says she wants to help you, and you certainly need help. All she needs before she can pay you is a brief statement to “firm up liability”. She’s pleasant and seems so nice. You have nothing to hide, do you? And you want to be helpful. So what could be wrong with answering her questions on tape? Plenty!

As a general rule, you should not give a recorded statement concerning a motor vehicle accident to anyone without the advice of an attorney. You shouldn’t give an oral statement either. To understand why it is not in your best interest to make a statement, put yourself in the insurance company’s shoes. An insurance company is in business to make money for its shareholders. Every dollar it pays out in claims to people like you is a dollar lost to the insurance company’s bottom line. Therefore, job #1 for every insurance company employee is to reduce the amount paid out in claims, and that includes your claim.

To reduce claims paid, the insurance company must deny claims made. To do this, company employees will look for reasons to deny your claim. They may use your recorded statement for this purpose. How?

  • Insurance company employees will compare the statement you gave them with other statements you have made, including statements you gave an investigating police officer or statements you made during your deposition in a lawsuit arising from the accident. Where they find inconsistencies in your multiple statements — and this is not unusual when someone tells the story of his accident more than once, sometimes weeks or months apart — the company will claim you lied. The company may deny your claim as a result.
  • Insurance company employees will ask questions worded in such a way that they trap or trick you into responses that hurt your case. You may not even realize this is happening at the time. They may try to push or bully you into agreeing to facts you aren’t certain are completely accurate. You respond “I guess so” just to get the questioner off your back. Unfortunately, that “I guess so” can come back to haunt you later.
  • Insurance company employees may lead you into making statements that you sound like you remember less than you really do. Before they even begin to record you, they may say things like “I guess it all happened really fast. It probably seemed like a blur. You probably were pretty shaken up afterwards. Makes it difficult to remember exactly what happened, doesn’t it?” And then you may make statements that sound like you don’t really remember what happened.
  • In a lawsuit, defense counsel can use your recorded statement to cross-examine you at trial or during your deposition. You may not remember exactly what you said in your statement. As a result, you may contradict yourself in some way. Although you think the discrepancy is inconsequential, the defendant’s lawyer will stress the importance of your misstatement to a jury and use it to convince the jury that your testimony is not believable.

The bottom line is that you should never give a recorded statement to an insurance company representative without the advice and guidance of an attorney. When you turn down the representative’s request, be courteous but firm. No matter how friendly and personable they may be when they’re talking to you, always keep in mind that they are employees of the insurance company and represent only its interests – not yours.

Editor’s Note: If by mistake you do give a recorded statement to the insurance company, you are entitled to a copy of it if you request it, under Virginia law. (Va. Code sec. 8.01-417).

About the Author: Elizabeth Morrell Allen has been engaged in the practice of personal injury law for over 30 years at the law firm Allen & Allen. From 1988 to 2004, Beth served as a branch manager of the firm’s Petersburg, Virginia office.