We've all seen the ads on television or radio, the friendly insurance agent making it seem like the insurance company is your dear friend, interested only in watching out for you. In reality, when faced with an injury claim, insurance companies use many tactics to delay, deny or minimize the amount of damages payable to the injured claimant.
This article addresses a few of the most common ways that insurance companies fight injury claims.
In order to establish liability for an injury claim, the plaintiff has to prove that the defendant was negligent and that this negligence was the cause of the accident and injury.
Showing negligence requires establishing that the defendant owed a “duty of care” towards the plaintiff. So, one common approach employed by insurance companies is to argue that the defendant had no duty of care towards the plaintiff.
The insurer may argue that the plaintiff was knowingly engaged in risky behavior and that the plaintiff “assumed the risk” of any injury. If the defendant can establish the assumption of the risk defense, the plaintiff will be unable to recover any damages. One example where this might arise is in an injury claim filed after a skiing accident.
In other situations, the insurance company may try to establish that the plaintiff contributed to his or her injury -- either by acting negligently or by aggravating the injury by failing to obtain proper medical treatment. In some states, if the defendant can show that the plaintiff was partly at fault, any damages will be reduced by the percentage of fault attributed to the plaintiff. In other states, if the plaintiff is shown to be even minimally at fault, the plaintiff cannot recover damages from the defendant.
The arguments discussed above can be expected from the other side's insurer in an injury case. But (and perhaps not surprisingly) your own insurance company may try to limit its obligation to pay you when you make a claim under your own policy.
When making a claim with your own insurer, remember to aggressively state your claim as if you were dealing with someone else’s insurance company. Many times your own insurer will look to the language of your insurance policy for ways to avoid having to compensate you. Although the insurance company may cite to an exclusion which they argue limits their obligations to you, do not hesitate to challenge their assessment of your claim. Keep in mind that simply because the insurance company asserts that an exclusion is applicable does not necessarily make it so. Read your policy carefully and consider consulting an attorney to help make the case that your claim is not barred by any exceptions contained in the policy.
All insurance companies will try to limit the amount of money they have to pay to an injured claimant. A commonly-employed approach is to minimize the extent of the plaintiff’s injuries.
The insurance company will seek evidence that shows that the accident was not that severe, or that it was not severe enough to cause the types of injuries that the plaintiff claims.
The insurance company will generally hire an expert medical doctor to perform an “independent medical examination” of the injured party, during which the hired doctor is asked to determine the nature and extent of the plaintiff’s injuries. As you can imagine, these hired experts very often conclude that the plaintiff’s injuries were not as severe as claimed or that the plaintiff underwent excessive treatment.
The insurance company will also likely try to prove that all or some of the claimed injuries existed prior to the accident. The insurer will comb through medical records from before the accident looking for any evidence that the plaintiff previously sought treatment for the same type of injury.
Insurance companies also often seek to limit their liability by claiming that the plaintiff has failed to substantiate his or her claim with ample evidence. The insurer may argue that it will not compensate for certain injuries because the plaintiff has failed to provide documentation from a physician who attributes the injury to the accident.
The failure to file a police report after a car accident can lead some insurers to question which driver was actually at fault, and the carrier may try to deny coverage on that basis. So, the most important thing for a plaintiff to do is to gather evidence relating to the accident and to keep records of all medical treatment, lost wages, and photographs of injuries or property damage. The more information the plaintiff can present in support of his or her claim, the stronger the case will be.