Americans making an injury claim should be cautious in making recorded statements to insurers after an accident. Insurance companies are not eager to part with their money and may try to use recorded statements against you in settling your claim.
While claimants never should lie to an insurance adjuster, they should be careful how much information or opinions they share and should be wary of questions adjusters may ask which could cost them later.
But first, you should know this: You do not have to make a recorded statement to an insurance company or adjuster, whether it’s your own insurer or the insurance company of the at-fault driver.
If you are making an injury claim for an accident which wasn’t your fault, you’ll be dealing with the insurer of the at-fault driver and not your own insurance company. An exception would be if the other driver lacked insurance or fled the scene, in which case you could file a claim with your own insurer, provided you bought uninsured motorists coverage. But normally it will be the other driver’s insurer who contacts you.
That company’s adjuster probably will call within several days after you make your claim. The adjuster may ask you to make a statement while insisting that you’re not under oath so it isn’t important legally. He or she also may insist that a statement is vital to settle your claim and must be done promptly.
But none of that is true. Legally, you do not have to make a recorded statement — and strategically, you should not.
Instead, you’re advised to consult first with an car accident attorney for legal advice and guidance. In fact, you may want your lawyer to be present when you make statements to an insurance adjuster.
That’s because, in personal injury litigation, plaintiffs’ statements do not have to be under oath to be used against them. As the Miranda warning goes, anything you say can and will be used against you.
If an adjuster calls and asks for a statement, politely decline or simply put it off, then consult your injury lawyer. No state in the United States has a law requiring an injured person to give a recorded statement to the insurer of the at-fault driver.
However, if you’re dealing with your own insurer, you generally have a duty to cooperate. Even so, by federal law, no insurer has a right to see any and all of your medical records.
An adjuster may ask you to sign a general medical authorization statement providing him or her with authority to see medical records from any healthcare provider you’ve seen. Eventually medical records can be provided when it’s time to settle your case, but soon after your crash an insurer has no right to see them.
When you do make a statement about your injuries, be sure to list every ailment, treatment and medication involved.
One way to avoid making a recorded statement to your insurer or that of the defendant is to declare you will make a written statement instead. That statement can be carefully prepared and then reviewed by your lawyer to ensure it doesn’t inadvertently hurt your case.
On the other hand, if your case is clearly going to trial, you need not make any statement in advance of the deposition you will inevitably make as part of the trial process. The deposition, and perhaps subsequent testimony, will serve as your statement.
You may wonder how your statement can be used against you. Well, what if the adjuster says, “Thank goodness your neck injury wasn’t as painful as it could have been,” and you agree? That statement then could be used to diminish your financial claim for your neck injury.
Or the adjuster could say “It sounds as if you had a lot on your mind that day,” and if you agree, that statement could be used to assert that you were a distracted driver and contributed to the crash.
Such leading questions and statements are designed to trip you up and provide fodder for defense attorneys to dispute your claim.
It’s also wise not to make friendly conversation with an adjuster, but rather to stick to the facts of the case. Don’t offer information about your family, and don’t give the names of your doctors.
With these pitfalls in mind, when you do provide information for the insurer, it should be clear that you should stick to the facts and not elaborate, complain or offer opinions.
That includes not offering any personal information such as “This crash came at a bad time — I’m getting divorced” or anything of that nature. Again, these admissions can be used to suggest you were distracted and contributed to a crash.
Keep in mind that after you say something in a statement to an adjuster, you can’t take it back. Your statement then can be used in settling your claim, even if that occurs weeks or months later. Anything you say can be used to diminish or even deny your claim.
Your injury lawyer can help you in preparing your statement. That can include writing down all of the pertinent facts about the collision which injured you, in chronological order, including medical care you may have had since the crash.
If the adjuster interrupts you to send you off-track, try to disregard it and simply continue with your statement. Also, make a point to record the statement yourself, since your own attorney should have a record of what you say to the insurance company as preparation for a possible lawsuit down the line. Simply tell the adjuster that you, too, will be recording the statement.
In a trial, you may need to give a deposition or testify, and before doing that, you should review your recorded statement to ensure that you give consistent statements or testimony. Consistency is vital in order not to jeopardize your reliability.
One thing your attorney may advise you to do is to deny liability. Don’t make the defense attorney’s job easier by shouldering all or part of the blame for a crash.
Also in this process, be wary of an adjuster who offers you a small “low-ball” settlement to resolve your case quickly. It’s better to wait and claim the entire amount you are due, rather than taking a small amount just to get on with it.
In addition, be wary of an adjuster who tells you not to talk to a lawyer. Declining to get legal advice would only help the insurer to settle your case for the least amount of money. You have a right to seek legal counsel and should exercise that right in dealing with a large insurance company which only wants to keep the money paid for its policies.
With that in mind, please contact our law firm for a free legal review of your case. We stand ready to help.