By Nick DiUlio
It’s a common but oftentimes intimidating scenario: You’re in an accident that may or may not have been your fault and a few days later you get a call from the other driver’s insurance adjuster. How you respond to this situation can make a critical difference in how your insurance claim is handled.
“If you’re contacted by the other driver’s insurance adjuster most of the time this means the other driver’s insurance company knows you have a case against them and they’re trying to do whatever they can to keep your claim against them as low as possible,” says personal injury lawyer David Greene. “If the accident wasn’t your fault, they will be in a mad rush to reach you before you get a lawyer because it will save their company a large amount of money.”
Here are nine things you should consider if you’re contacted by an auto insurance adjuster after a crash:
Get a lawyer
Navigating the complex waters of a post-accident auto insurance claim can be an intimidating prospect for most drivers, and obtaining legal representation can go a long way toward alleviating the stress of the moment.
“Unless you were struck in the rear, it’s likely that the adjuster is seeking to pin at least some of the accident liability on you,” says New York-based attorney William Ferro. “They will often act as though they’re trying to sort out the facts, but more often than not the purpose of their call is adversarial in nature, and I would caution anyone to consult with an attorney prior to engaging in discussions with someone who has an interest that may be adverse to yours.”
The need for an attorney is further compounded if there’s been a serious injury, says Washington D.C.-based attorney Thomas Simone.
“If someone is seriously injured, they should first contact a lawyer and let the lawyer contact the insurance company. As they say on TV, anything a person says can be used against them. But if a lawyer says something there is a buffer between the client and the adjuster and the statement cannot be used the same in court and can also be explained away,” says Simone. “Plus, lawyers know what to say and what not to say.”
Never admit fault
Sure, the particular circumstances of an accident can be fuzzy and confusing, especially in the immediate aftermath. And sure, you may be a little uncertain about who was to blame. Nonetheless, you should never admit fault.
“It is vital to be clear that the other driver was at fault for the accident and not you,” says Simone. “In some states if you are even one percent at fault you are barred from recovering on a claim. Also, you must be clear that you are injured as a result of the accident. If you do not know, tell them you are going to get checked out and get back to them. It can seriously hurt your case if you say you were—or might have been—at fault or that you were not injured. Again, since you are a party to the accident, that statement can be used directly against you, even if you later try to amend it.”
That being said, it can’t hurt to point out any factors that could support your claim of innocence.
“Negligence or reckless driving by another driver would explain this, as well as stating that the rules of the road have been obeyed,” says Jordan Perch, driving expert and blogger for DMV.com. “Other than that drivers are advised to leave out details about their accident, with the exception of when and where it happened.”
Never admit to being uninjured
Adrenaline is a powerful chemical, and it can often mask injuries at the site of an accident we might otherwise feel a few days later.
“A lot of times people will have an accident and walk away feeling fine, but over a period of days, and sometimes even weeks, signs of injury can begin to appear,” says personal injury lawyer Craig Miller.
Miller says adjusters have “all sorts of tricks” they employ to get you to admit that you weren’t injured.
“For instance, they might call up and say, ‘How are ya feeling today?’ You may casually reply that you’re feeling fine, and they may be able to use that as evidence that you weren’t injured in the accident,” says Miller.
Even if you do feel pain, don’t mention it to the adjuster. It may just be what is known as a “masking injury.”
"For example, you may feel pain in your neck, but that’s not the primary injury," says Atlanta-based personal injury attorney Robert Katz. "It may only be masking pain you will eventually feel in your back a few days later. But if you only mention the neck pain, it could preclude you from compensation for the back pain when it creeps up later on."
If a discussion about injuries has to happen, just make sure it’s not part of the first conversation you have with the adjuster.
“Drivers must refrain from starting the conversation with the adjuster with a detailed description of any injuries that might have been sustained in the accident, because that could decrease the value of the claim,” says Perch. “Drivers should leave out details about the severity of their injuries, and maybe inform the adjuster about an injury later on instead of during the first conversation.”
Actually, you might not want to discuss your medical condition at all
“In general I would say that you should never discuss injuries with the adjuster,” says Miller. “It’s okay to talk about damages to the vehicle, but never injuries. That’s why you have a lawyer.”
To that point, Katz offers the following advice:
“During the first week after the accident just tell the insurance adjuster that your focus is on property damage right now and that you’re being treated for any injuries you may have incurred,” says Katz. “Tell them it’s just too early to have a discussion about medical issues, so let’s just focus on getting the property damage resolved.”
Keep it simple
No need to get into the nitty-gritty details about the how, when, and why the accident occurred, says Phoenix-based attorney Frederick Thomas. Stick to the basics.
“Let them know where your vehicle is so they can inspect it for damage, let them know if you or anyone in your vehicle was injured, and let them know what treatment you have received or are receiving,” says Thomas. “If the other party's adjuster does ask how the accident occurred you are not under any obligation to tell them. If you do, make sure the adjuster is not recording the conversation.”
If the insurance adjuster presses you for details on the accident, Katz says you should direct them toward the police report.
“If you start discussing how the accident occurred, they will start talking to you about all sorts of things, like whether you were on your cell phone, listening to the radio, or maybe looking down at the time,” says Katz. “It’s a litany of questions designed to pin responsibility on you, and I would politely ask them to obtain a copy of the police report.”
Don’t sign anything and don’t consent to being recorded
According to Thomas, drivers should “never sign a medical authorization allowing the insurance company to gather your medical records…If you are making an injury claim and you do not hire an attorney, once you are done being treated gather your bills and records yourself.”
As for being recorded, Perch says you should avoid this at all costs.
“Drivers are advised to avoid giving recorded statements, which is something that most adjusters demand,” says Perch. “If the adjuster is allowed to record the conversation, he or she might use the tape later to try and find potential flaws and inconsistencies in the driver's statement that could hurt the value of his or her claim. Drivers are not required by law to give recorded statements, so they should always refuse it.”
Simone points out, however, that you have a duty to comply with your own insurance company, so if they want to take a recorded statement you need to do it in order to not lose coverage.
“However, with someone else’s insurance company, you have no such duty, so you can refuse to do such a statement,” says Simone. “That being said, giving a recorded statement can often be helpful since it gives [your insurer] the information they need to confirm the facts of the accident and your injury.”
Don’t let the adjuster rush you
You are entitled to a detailed and thorough claim process, so make sure you remain calm and don’t get intimidated by the conversation with the adjuster.
“Most adjusters will attempt to rush callers into settling as soon as possible,” says Perch. “They use the first conversation with a driver to get them to settle for a low amount, because at that moment the driver probably does not have an exact idea of what their claim is worth. Chances are that he or she needs the money as soon as possible to pay for the car's repair and medical bills.”
What’s more, don’t assume that you need to accept the first appraisal that comes in.
“It does make sense to challenge the appraisal report when you receive it if you don’t think it is fair or accurate,” says Ron Schmedly, manager of DefensiveDriving.org. “At the end of the day the adjuster wants the case to be closed so there is some wiggle room. That said, you shouldn’t speak general dollars but rather the specifics of the report. If you feel the bumper has more damaged than is on the report, you should be vocal about it.”
Don’t assume your insurer is your friend
While most of us assume that our own insurance company is looking out for our best interests, there are certain circumstances where this may not be the case.
First of all, Simone points out that every statement made to an insurance company, including your own, is not protected by the attorney client privilege. And that means the adverse insurance company can obtain any statements you gave to your own insurance company with a letter or, if litigation occurs, a subpoena.
What’s more, if the at-fault driver has no insurance or loses coverage for some reason, your own insurance company may have to pay claims on his or her behalf
“That means your own insurance company can often end up being adverse to you in the sense that it wants to pay you as little as possible,” says Simone. “This is another reason not to confide in your insurance company or trust them to give you advice.”
Answer the question that is asked
In addition to standard questions about the nature of the accident—where and when it occurred, for instance—an insurance adjuster will also add more pointed questions that you need to be prepared to answer.
Kevin Lynch, assistant professor of insurance at The American College in Pennsylvania, says one of the most common questions is this: Who, in your opinion, had the last opportunity to avoid the accident?
“The reason they ask this is because even if the other driver hit you, you could still be held partially at fault if you had some sort of opportunity to avoid the accident at the last second,” says Lynch.
If this comes up, Lynch recommends a reply that sounds something like this: I’m assuming the person who hit me had the last opportunity to avoid the accident.
No matter what, Lynch says you should always be honest—but don’t volunteer any more information that’s necessary.
“If they ask you what time it is, don’t tell them how to build a clock,” says Lynch. “Don’t elaborate on your answers. Just answer the question that is asked. Don’t volunteer any additional information, because you don’t know what it will be used for in the future.”
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