Discussing Liability in Your Demand Letter

How you craft your version of events can help or hurt your position during injury settlement negotiations.

Early on in your demand letter, you will describe how the acci­dent happened and why the other side was at fault. Below are some tips on how to word this important section of your demand letter, and how to handle a situation where you may share some of the blame for the accident.

If you're just starting the injury settlement negotiation process and haven't written a demand letter before, start here.

Setting the Scene

In plain language, briefly describe where you were and what you were doing immediately before the accident, then how the accident took place. For example:

“I was driving north in the right-hand lane along 4th Avenue at about three o’clock in the afternoon. When I was more than halfway through the intersection with Broadway, your insured entered the intersection in the center eastbound lane on Broadway and slammed into the passenger side of my car.”

Include all points that might indicate that the other person was at fault for the accident. Put your strongest argument first:

“I clearly had the right of way at the intersection. Your insured had a stop sign on Broadway, and I had no stop sign on 4th Avenue.”

And add other facts that might lead to an even stronger case against the insured:

“Furthermore, since your insured struck my car on the rear side panel, it is obvious that I was already well into the intersection when he entered. Also, the extent of the damage to my car indicates that your insured was moving at a substantial rate of speed, which would mean that he never even stopped at the stop sign.”

Evidence and Witnesses

If you have any outside support for your theory, make sure to include it. In a vehicle accident case, repeat any helpful remark in a ­police report. In a premises liability case, quote a building code section that the owner has ­violated.

If you have any witnesses who support your version of the accident, let the insurance company know how many of them back up your story. If you have a good written state­ment from a witness, quote the best part of the statement. You do not have to reveal the identity of a witness in the demand letter; instead, write that you will make the identity of the witnesses known to the insurance company “at the appropriate time.”

One intangible may be how gruesome your damaged car looked. If it was badly smashed, describe that. Include a photo if you have one, to high­light how serious the ­collision was. If the car was spun all the way around, mention it. If it had to be towed away, mention that. Likewise, in a slip and fall case, if you have a photo of a hole you tripped in or a dangerous-looking ­object that injured you, include the photo and refer to how obviously dangerous it is just from looking at the picture. If you not only fell but fell down several stairs, mention it.

Choose Your Words Wisely

One of the most important but overlooked effects of language in negotiating a claim is how strong words -- instead of merely the most direct words -- can get across to an adjuster the emotional impact of the accident and your injuries. The words you use in your claim should highlight the dangerous carelessness of the other person, the pain you suffered, and the seriousness of its consequences. So, for example, a car does not hit another car, it slams into it. Or a car did not merely have the right of way, it clearly or obviously had the right of way. A knee is not merely twisted but has suffered a strained collateral ­medial ligament. An injury is not just painful, but is extremely painful. A wound doesn’t merely leave a scar, but a very disfiguring scar.

Of course, you have to be careful not to get so colorful with your language that an insurance adjuster will mistrust what you say. But bear in mind while you are writing your demand letter that carefully chosen words can be an effective tool for helping an adjuster understand what you have been through.

Dealing with Shared Fault Issues

In many accidents, there is some question about whether your own carelessness contributed to the accident even though the other person was primarily at fault.

Raise the issue in your demand letter by ­denying that you were at all comparatively negligent. This denial shows the insurance company that you are aware of the shared fault rules and have thought about the issue. It allows you briefly to state your argument in writing so that you don’t have to discuss it for the first time on the phone with the insurance adjuster -- a situation that is more difficult for you to control.

Do not admit any fault. Even if you believe that you might have been partly at fault for the accident, do not admit that in your demand letter unless you would lose credibility by failing to do so, such as if you were cited for a vehicle code violation. In that case, acknowledge the issue but insist that your contribution to the accident was minimal. In all other situations, mention only the reasons why you were not at fault. Although you must consider your own negligence in deciding what a fair settlement is, it is not your job to make the comparative negligence arguments for the insurance company. So, for example, if there was a traffic accident, point out that the police report confirms that you ­violated no traffic laws and that it mentions no careless driving on your part. If you tripped or slipped and fell on stairs, indicate that you were walking normally, that your shoes had normal heels and soles, and that you were watching your step. Your discussion of comparative fault should end with a statement that it is clear that the ­insured was fully liable for the accident.

This article is an excerpt from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).

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