LEGAL GUIDE
Written by attorney Stephen Allen Markey III | Oct 23, 2013

Three D’s of Automobile Insurance Defense Delay, Deny, Defend

Whether they are the “good hands" company or “like a good neighbor", or claim to be “on your side", or advertise with a cute lizard, automobile insurance companies are in the business to make, and save, money. Their loyalty is to their shareholders first, not their insured and certainly not to the injured victims of accidents for whom the insurance was purchased. The following is a true example of how an insurance company handled an automobile case.

A Client, Jane Doe, is stopped at a red light. She is the second car in line and has been stopped for about five seconds before she is rear ended by a “good hands" insured. (“Defendant"). Jane’s car is pushed forward and she strikes the car in front of her. At the scene the defendant driver gets out and tells Jane that he is “so sorry. I was looking in my mirror and didn’t realize you stopped." The car driven by the defendant has significant damage to its front with the grill and the hood is pushed in. However, it is still drivable. At the time of the accident Jane had a preexisting lower back problem from a fall ten years earlier. She has not had any treatment for over eight years for her back and she would only occasionally take ibuprofen when her back pain would flare up. She has been able to engage in all of her normal activities which include jogging for exercise. Immediately after the accident Jane got out of her car and could feel a tightening in her lower back and a tingling in her neck. She was also very nervous and upset as the impact had been significant. She notes that the rear of her car has damage to the bumper and the front of her car has a cracked bumper and damage to the grill. The vehicle in front of Jane was a pickup truck with a steel bumper so it had no appreciable damage.

The police were called and immediately asked Jane and the driver behind her if either needed an ambulance. Jane told the police officer that she was on her way to pick her kids up from daycare and she had no one to pick them up so she did not want an ambulance. Police policy, which is the same throughout Maryland and in other states, is to prepare a police report any time an individual is injured in an accident or if any the vehicles need to be towed.The police made sure the parties exchanged information and left.

After exchanging information with the other driver, Jane went to pick up her kids and then went home. Jane’s husband was out of town and she had nobody to watch her children. She did not go to the doctor that night. The following day Jane had significant lower back pain and pain in her neck towards the right side as well as an excruciating headache. When her husband returned home that evening he took her to the emergency room. At the emergency room they took x-rays of her neck and back and noted that there was a straightening of her spine (which indicates spasm), but there were no broken bones. She was diagnosed with muscle strain/sprain of the neck and lower back and post traumatic headaches, and given a prescription for pain medication. She was told to follow up with her doctor or to return to hospital if her symptoms worsened. She was also told that typically her pain should be gone within ten days.

In the meantime Jane was also working on getting her car repaired. Her husband had taken the car to the Defendant’s adjuster to evaluate the damage. At first the adjuster claimed that the front end damage was not caused by the accident but then relented when Mr. Doe insisted that the car, which was less than a year old, had not been in any other accidents. The adjuster provided an estimate for the repairs to both the front and the rear of $910.00. What Mr. Doe did not realize was that the adjuster had done the estimate using both aftermarket and used parts to be put on his new car. The parts would be close but of an inferior quality. Using actual manufacture parts would have likely cost at least an additional five hundred dollars. Furthermore, the estimate provided by the body shop is based on discounted rates given to insurance companies.. Therefore the actual value for the repairs to the Does’ vehicle was over $2,000.00.

Ten days post accident, Jane’s neck pain, headaches and lower back pain had actually begun to increase rather than start go away. Jane was out of the prescription pain medication and was just taking ibuprofen. She had reported this accident to her insurance company and given a recorded statement. She also spoke to the at fault drivers adjuster representing the defendant and gave a recorded statement. When the good hands adjuster if the accident had occurred suddenly she responded “yes". What she meant was that it was a complete surprise to her as she was stopped in traffic when she was hit from behind. She told the adjuster that her neck and back were still hurting her and the adjuster correctly advised her she should probably go to the doctor again. About ten days after the accident Jane called and received an appointment with her doctor. The next day her primary care physician advised her that he believed she had a neck and back sprain/strain; he gave her a prescription for additional pain medication and a muscle relaxer and gave her a referral for physical therapy for three weeks. Jane followed the doctor’s instructions and began physical therapy three times per week the following day.

Jane followed her doctors’ advice, but the physical therapy did not seem to be helping. In fact, after physical therapy she felt worse. After two weeks of physical therapy Jane called her doctor and he referred her to an orthopedic surgeon. The surgeon ordered an MRI which showed a herniated disc.

Jane’s doctor recommended epidural injections which would both be diagnostic and would also help with inflammation and pain. Jane underwent the back injection which helped but did not eliminate the pain. Jane’s doctor recommended surgery.

Eventually, Jane had a discectomy (removal of the herniated disc). Six months after the surgery Jane was released from careand the claim was ready to be resolved. Jane had $23,000.00 in medical bills and approximately $4,000.00 lost wages. The insurance company offered Jane $15,000.00 to settle her case. The adjusters rational was that the medicals were reviewed by one of their doctors and that doctor determined that all of the physical therapy after the first 6 weeks following the accident was unnecessary, and that the surgery was necessitated by degenerative disk disease and not by the accident. As a result, Jane hired an attorney and suit was filed.

The good hands people defended the case claiming the accident was not the fault of their insured. They claimed a “sudden stop" prevented their driver from stopping. This was based on Jane saying “yes" when asked if the accident occurred suddenly. They also argued that Jane’s failure to go from the accident scene directly to the hospital was an indication of a lack of injury. They also argued that because the emergency room x-rays were “negative" that Jane clearly could not have had any disk problems associated with the accident. Next they also argued that with only $910.00 in property damage, (with used parts and a discounted labor rate), the impact was insufficient to cause the kind of injuries claimed by the Plaintiff. Finally, they claimed that Jane’s fall approximately 10 years earlier was the cause of all of her problems.

During the course of litigation the defense requested and a court order to have the Plaintiff examined by a doctor of their choosing. Unfortunately, they did not select a doctor that would give an independent unbiased opinion. Rather, they selected a doctor that made approximately $500,000.00 per year performing defense examinations and testifying for the defense. Not unexpectedly, the defense doctor supported all of the Defense’s positions. However, during the course of litigation it was also discovered that the person who caused the accident only carried a $100,000.00/$300,000.00 insurance policy. That meant that the maximum the good hands people would have to pay was $100,000.00 to any individual involved in the accident. After spending a great deal of time, as well as litigation expenses, (depositions, the cost of defense experts etc.) this case ultimately settled for the $100,000.00 policy limit that was available. Jane also had a $100,000.00/$300,000.00 underinsured motorist policy which, because it did not have higher limits than the person causing the accident, was unavailable to her.

Lessons

  1. If you’re in an automobile accident and you believed that you are injured, make sure that the police understand you are in fact injured and if warranted get in the ambulance and go to the hospital from the scene.

  2. Always follow up with your own doctor or an orthopedic specialist following an accident if you sustained injuries. An emergency room visit or an urgent care visit is probably insufficient to document your injuries.

  3. Keep a diary as soon as possible after the accident so that you can write down what a defendant states as well as what your injuries are for future reference.

  4. If possible take photographs of the vehicles involved in the accident as soon as possible. Cell phone photographs can be taken at the scene.

  5. When your car repair estimate is made, advise the estimator and the shop that you will not accept used parts or aftermarket parts as they will drive down the value of your vehicle and the cost of repairs which will then be used against you by the insurance company.

  6. Never give a recorded statement to the opposing parties’ insurance company following an accident without consulting with an attorney.

  7. Insurance companies are not your friend and their goal is to reduce your recovery.

  8. Call your attorney as soon as possible after an accident so that the attorney can both remind you how to preserve evidence and begin preserving evidence him or herself.

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