As soon as you are involved in an accident, the phone begins to ring. One such call will usually be from the liability insurance carrier for the other party involved. They want to “make sure you’re OKandget a little information from you." Sometimes they may ask to record the statement (or they may not even ask) or ask you for a written and signed report. Don’t do it. Your file from that moment forward will be documented with what may eventually become adverse information to your claim. If you casually answer, “Thank you I’m OK" even though your arm may be in a cast or your doctor is about to administer significant prescription pain medications and set you on a course of therapy for the next three months, the insurance carrier has the perception that your claim will not be a significant one and will mark your file accordingly. Your innocent, un-counseled description of how the accident occurred, whether a car accident or a trip and fall or construction accident may not include the precise details that will later be required to establish your claim in court. When these statements are recorded or signed by you, they may be admissible in your court proceeding. There are many details that must be included to establish your legal claims that you, before speaking to an attorney, don’t perceive to be important. Therefore it is best to politely decline the interview and speak to an attorney who can guide you through the process.
Before you give any recorded statement or fill out and sign any accident report, be sure to speak with an attorney. What may seem like an insignificant telephone statement or a basic accident report may later be used to undercut your entire claim. Everything you place in writing, or record may be discovered later on in litigation and can be used against you. Therefore you need every statement and report properly worded with the precise details that reflect your exact theory of liability (how the accident occurred) and what your injuries are as a result of the accident.
That seemingly innocent, half-hearted recorded statement made to an insurance representative (most likely from your own carrier) a few days after the accident that , “I’m Okay" will come back to haunt you. First, when made to your own insurance carrier – who is usually providing you with your no-fault or personal injury protection benefits (payment of your medical bills and loss of earnings), it serves as a basis for the carrier to start over analyzing and questioning the medical care that you are receiving. They will start a process of “peer review" of your medcial care. Your own insurance carrier may refuse to pay your medical bills, deeming them “not medically necessary." If you fall victim to making the same statement to the adverse insurance carrier, they will write the initial report and set the reserves for settlement at an unreasonably low amount of money – which makes it more difficult for your attorney to settle for a fair and just amount of compensation at a later date.
Your MV-104 or accident report provided to the New York State Department of Motor Vehicles can be used to cross examine you at deposition and trial. The report, usually filled out and signed by you within days after the accident contains a description of how the accident occurred and a basic statement of your injuries. Any missing information or details will be used to undercut your claim. Any details that differ from your testimony later in the case will be used to show you are exagerating or not telling the truth. Once a jury beleives you are lying or exagerating, it won’t be long before they find for your opponent.
Your attorney knows how to properly word your accident reports and should provide you with that guidance before you sign the final version. Once you retain counsel, you should not be giving any recorded statements to any insurance carrier without his or her permission, preparation and guidance. You may be obligated to give a statement to your own insurance carrier under the terms of your policy, however that statement should be carefully prepared with your attorney’s guidance. You should never give a statemet to the adverse carrier. You are not obligated to do so. The adverse or defense carrier should not be given “a free bite at the apple" before deposition. The carrier may claim that they cannot settle your claim without your sworn statement. Newsflash – insurance carriers rarely settle your personal injury claim for fair and reasonable value without being forced to do so by litigating your case most of the way to trial.
Retain counsel. Let your attorney control the flow of information. Make sure any written is carefully worded and reviewed before you sign and submit it to the government, or insurance carriers. Be sure to prepare with your attorney before giving any oral or recorded statement. Once a statement is given, you cannot take it back.
Sign up to receive a 3-part series of useful information and advice about personal injury law.