Introduction
We have been dealing with insurance adjusters for a long time.
In this article, we cover how insurance companies and adjusters have change the way they evaluate claims, and what remains the same.
We also cover what things adjusters will seize upon to “lowball” your claim.
The Kind of Good Old Days
Before the Internet and the technology explosion of the 1990’s insurance adjusters acted with a bit more independence, and actually got to use their own discretion and good judgment. We cannot say this was true for all adjusters we dealt with, but a few examples come to mind.
Insurance companies, especially the larger carriers like Farmers and State Farm, used to assign the adjusters to certain parts of Oregon and Washington. Because of this, we dealt with the same adjusters on a regular basis, and from that, developed the relationship. Not all relationships were “cozy,” but we each knew where we stood, and after a while, could cut through the clutter to address a claim. We didn’t settle every claim, and would often go to trial, but we knew where the other stood, and that relationship helped our clients in the long run.
Technology Takes Over
Sometime in the middle 1990’s, the larger insurance companies started to experiment with jury behavior. Insurance companies are generally better suited to take risks, so 1 of the larger insurers decided that they would take several cases the trial and see exactly how jurors were responding to certain kinds of cases. Insurers found out that some juries might be resistant to compensating injured clients, especially those who suffered “soft-tissue” injuries in lower speed collisions. Armed with some data, insurance companies started automating the claims evaluation process.
We first noticed this with Allstate. Allstate adopted a computer software program known as “Colossus,” with several other large carriers following suit. Instead of looking at the facts of the case, and our client’s specific circumstances, adjusters started feeding data points into the program. These data points included the medical expenses, diagnostic codes, billing codes, and other information that can be easily be compared from one case to the next. Out the other end came a range of settlement authority with a low and a high settlement amount.
Some adjusters we had worked with actually began complaining that they became not an adjuster, but instead a “glorified data entry clerk.” One adjuster actually resigned his position to go to work for himself.
Now
Insurance company still rely upon software and algorithms to evaluate claims. Adjusters are not as experienced as they used to be, especially in the early part of the claim. Here are a couple of the tactics that we see with the “lower level” or initial adjusters:
The Threat of “Closing the File.”
Many clients will come into the office and tell us that the adjuster threatened to close the file unless the client accepted or responded to a settlement offer within an artificial deadline. Adjusters can close the file if they want, but under Oregon law, you have a certain period of time to have your claim resolved by settlement, or filed in court. It doesn’t matter if the insurance company decides to “close your claim.” That means absolutely nothing. It is an empty threat.
The Lawyer Will Take All Your Money
The main objective of a front-line adjusters to keep you in the dark on the true value of your claim. Adjusters will employ this care tactic to keep you from speaking with an attorney. Although attorneys to charge a percentage of your settlement as their fee, it is only a percentage of the settlement. Insurance industry trade groups have evaluated outcomes for represented v. non-represented claimants, and have determined that even after accounting for an attorney fee, representing claimants generally come out better when having an attorney involved.
This is not always true. There are some cases, especially with a minor injury, where no attorney is going to better the position of the injured party. When we can confer with clients who have been to the physician one or two times, and are lucky enough to have escaped an auto collision without any ongoing symptoms, we will give them some ideas on how to resolve the matter, but will decline to take the case. We are not really going to be effective and bettering their settlement position, and there usually better off dealing with the claim on their own.
There is another group of cases where an attorney may actually be able to get a client a better settlement result, but after accounting for the fees, the client may have been better off resolving the case without the help of an attorney. However, Oregon does allow attorney fees in these “smaller” cases if the insurance company refuses to accept a reasonable offer within the required time period. This can help an injured party get at least a “fair” offer on a medium to smaller injury case.
When Adjusters Get Real
When we file a case in court for our client, the insurer will often assign a “litigation adjuster.” This adjuster is usually more experienced, and reminds us of the kind of “good old days” when we worked with an adjuster who actually knew what they were doing, even if we did not agree with them on how to resolve the case. At the very least, we are able to get our client to a position where they can decide whether to accept a “best offer,” or move forward with a trial. Usually, this adjuster will have the benefit of reviewing our client’s deposition, and discussing the case with an attorney assigned to represent the at fault driver. At this point in the case, both sides have a much better idea about what the case is really about, and that allows a better evaluation of the claim.
Again, even though we may have a more experienced adjuster that can appreciate our client’s case and not rely upon a computer program, not all cases will resolve, and will move forward to trial.
A Case Study
In a recent case, we represented a woman who was driving on Highway 101 when a car pulled out onto the highway in front of her, and failed to yield to her right of way. Our client suffered significant injuries and underwent extensive physical therapy and neurological evaluations. She continued to experience symptoms related to a mild traumatic brain injury. After the initial settlement offer, we decided not to even respond and filed her case in court.
After providing the attorney with medical records and other documents, the attorney representing the at fault driver took our client’s deposition, and learned a lot more about the everyday challenges our client faced with her injuries. The new adjuster on the case ended up offering almost 15 times what had previously been offered to resolve the case.
Here is the disclaimer: This does not happen all of the time. There were some factors unique to this case that caused such a jump in the amount the insurance company was willing to pay to resolve the matter.
Our client was a wonderful person. She was obviously credible during her deposition, and did not exaggerate her symptoms, but described significant ongoing problems.
The other driver did not come across all that well in deposition. He was evasive, defensive, and not believable. The adjuster actually attended this deposition, which is something we do not see very often, and that definitely affected her evaluation of the claim.
Mistakes to Avoid
We cover this and other articles on the website, and in our Oregon Personal Injury Guide, but it never hurts to review. Here are a few mistakes to avoid when dealing with adjusters.
Don't Sign Releases
Insurance adjusters will send you letters stating that they must have you sign an authorization or release so they can access your medical records to evaluate the claim. There is no requirement that you sign these releases. We recommend against it. Although we have not seen it happen yet, these authorizations are so broad that the insurance company can not only obtain your accident related records, but any medical record, even if it has absolutely nothing to do with your injury. Technically, the adjuster could actually speak with your physician with 1 of these authorizations.
Under federal law, your health information (medical records) is protected, and you can obtain the records and provide them directly to the adjuster if you would like. We do this all the time for our clients.
If you have signed a medical authorization, it is not the end of the world. When we begin work with a new client, we notify the insurer that we represent our client, and revoke any medical authorizations that our client signed. We also request any records that may have been obtained as a result of the authorization.
Be Careful About Statements
Again, many of the people who hire us to help them with their Oregon injury claim will have given a statement to the adjuster. It’s not fatal to the claim, but if an adjuster asks you to give a recorded statement, be careful. Claims adjusters are trained to obtain “admissions” from you that may be used to argue later that your injuries were not all that severe, or that the collision was not the other driver’s fault. Often, the statements are taken within days after the collision, when many injuries have not really come to light.
Stated simply: We have rarely if ever seen a situation where our client has given a statement and that actually helps their cause.
In Oregon, you may have personal injury protection coverage with your own insurer. An adjuster with your own insurance company may contact you to take a statement, and because your insurance contract requires that you cooperate, you probably have to at least provide some description of how the collision occurred. However, this information is not shared with the other driver’s insurance company.
If You Are Injured, Seek Medical Help
We have seen many clients delay treatment for many reasons. Some of our clients refuse to admit that there are injured, and will try to “tough it out.” Others may be genuinely hurting, but don’t want to miss time from work or miss out on family activities. An insurance adjuster will assume that if you did not seek medical care, you were not really injured.
This can be a significant issue especially in a serious injury claim that required surgery. In addition to proving that the other driver because the collision, you must make a connection between the injuries that you are claiming and the collision itself. Lawyers and judges often refer to this as the “causation” issue. If you suffer a serious injury, but did not seek medical care for days or weeks after the collision, that is a perfect opportunity for an insurance adjuster and the doctor they hire to argue that your more serious injury was not caused by the collision. This is especially true if you have a pre-existing condition that was made worse by the collision.
Social Media
Social media is pervasive and today’s society. Some people have no issue sharing the most intimate and personal details of their life for the whole world to see. Many of our clients will post something after collision asking others to drive carefully and be safe. However, the more you post on social media after suffering a serious injury, the greater the chance a defense attorney can exploit your posts and use them against you. It is never a good idea to post extensive details about your injuries or the collision on social media.
What Hasn’t Changed
At the end of the day, when an insurance adjuster evaluates a claim, especially if they know what they are doing, that adjuster is trying to figure out what a jury would do if presented with the facts of your case. Predicting jury behavior can be a challenge, and there is no shortage of consultants who will help lawyers on both sides of the case try to figure out how a jury will react when given a certain set of facts. Even the computers get it wrong from time to time.
Another constant throughout the years has been bringing proof. Early in my career, a retired judge was giving a talk to a bunch of young lawyers. One of the young lawyers asked the judge for any tips on maximizing the result for his injured client. The judge paused, looked at the young lawyer, and stated that “it always helps if you can have some proof.” Everyone laughed. However, it’s a fundamental truth.
In an injury claim, there are three things you need to prove:
- Fault;
- Damages;
- Causation.
We cover the “elements” of the claim and other posts, but essentially you have to prove that the other driver was the reason you suffered an injury. You then have to prove the extent of your injuries. Finally, you must prove that the extent and nature of your injuries is a result of the collision or the other driver’s careless/negligent behavior.
In many cases, the insurance company may agree that there insured was at fault in causing you an injury, but the real fight might be over how badly you were injured. For example, you may be dealing with pain shooting down into your arms from your neck with numbness and weakness. Your physician may have diagnosed a cervical disc herniation. You may require surgery. However, the insurance company might argue that you had arthritis in your neck before the collision, and at best, the only injury the collision caused was a cervical strain. That’s why it is important to seek medical attention when you needed (see above). This kind of fight is what we call a “causation” battle.
When evaluating this kind of issue, and insurance adjuster and a defense attorney will look very much at whether you have a medical opinion that connects the collision with the claimed injuries. This is one example of how claims are evaluated, and have always been evaluated.
Questions
We help people make the decisions on their injury claims every day. If you have questions, contact us. If we are not able to help you with your case, we can put you in the right direction, or at the very least, give you some resources.
