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H. Dennis Beaver
For the Times-Standard
YOU AND THE LAW
We have all seen the television commercials for Allstate, Progressive, Geico and others. “We are here to protect you,” is their basic message, especially the extremely well done Allstate series of TV ads.
Should you believe what they say?
”This is an industry where, if you will pardon the sarcasm, the big print giveth, and the fine print taketh-away,” was the response to that question by a classmate of mine from Loyola University School of Law. He is an insurance defense attorney, working for some of the largest companies in the country. “I do not care who you are insured by,” my class pal added, “they are looking out for their financial interests, not yours. Trust is not a word I would use when describing the relationship of insurance company to the insured. You must be careful.” For obvious reasons, I am unable to use his real name, so we will just call him Carl.
Built-in conflict of interest
What is best for you, an insured who might have caused the accident, is seldom best for your insurance company. You want to be protected--not wind up getting sued -- and that's why you bought an insurance policy in the first place, in addition to the requirements of California law. But to the insurance company, it's only a question of money, of their money, and, naturally, spending as little of it as they have to.
”The danger is that when a claims adjuster refuses to accept responsibility or to offer a reasonable settlement, you are at risk of being sued. Some of the largest insurance companies in the nation just do not care, often with consequences for the insured that, “steal your time and easily lead to serious emotional distress and financial harm -- such as a negative credit report, merely for being sued. We all worry when sued, and 1because of a low-ball settlement offer, so many suits have been filed against good people who have been treated badly by their own insurance company,” my colleague believes.
What you need to do
It could be an auto accident, or something that happens in your backyard, or on your business property. Anything from a dangerous piece of concrete jutting out in your driveway, to a hole in the lawn of which you are aware. It is human nature to avoid taking responsibility for another's injury -- and that is precisely what an insurance company will expect.
”Adjusters are unaccustomed to an insured's immediately accepting fault-worse yet, telling the other side's attorney what really did happen. Even where evidence of fault is overwhelming, it is the practice of a number of insurance companies to deny the obvious. Sure, at times, an insured in good faith believes he or she is innocent, and this can form the basis for the statement we like to believe our insured's version of the facts. It is often a reason to assign a percent of fault to the other driver, even where an adjuster knows darn well their own insured is entirely at fault.” I was told by a retired claims adjuster with Farmers Insurance, Bob West of Bakersfield.
If you have caused the accident, or somehow been negligent at home or at the office, and a visitor is injured, here is where basic honesty has a reward completely aside from the satisfaction of doing the right thing. “When you tell your insurance company that you really are at fault and that you want the injured person properly taken care of, you may not win any brownie points from most claims adjusters. Depending upon management attitudes, the field adjuster maybe “required” to find some fault with the other party. But at the same time, it may force that adjuster to think twice before issuing a denial of liability, and tossing the case into litigation.”
First party bad faith
So, how do you encourage your insurance company to do the right thing? “By letting them know that you are aware of your rights, and by using the two words that can strike fear in their eyes: Bad Faith.”
It is called First Party Bad Faith and means that you, as the insured, have a contractual relationship with your insurance company to be protected. “They have a duty of settling a claim -- for which liability is clear -- promptly and within the limits of your policy. They need to act in a manner that does not get you sued, and certainly that does not expose you to a judgment above the policy limits. You need to become an active participant in the handling of your own claim, and insist upon receiving copies of all correspondence from and to the adjuster,” Attorney Carl stressed.
The truth is that when you are at fault, your relationship with your very own insurance company isn't a cozy one. It can easily be worth your taking the time and paying for a consultation and letter from your own lawyer, directed to that claim adjuster--not asking, but instructing--that the claim to be settled within the policy limits, and making it clear that you do not want to get sued.
Adjusters “expect the insured to establish a team member mentality with their own insurance company. Do not believe it. You are not on the same team. What you need, and what is good for you is to make this case go away quickly and to not be sued. In today's climate, especially with so many of the borderline insurance companies, you need to drive home the message that if you get sued because of their bad faith, then expect a formal complaint to the Department of Insurance and the risk that this adjuster -- your adjuster -- might discover how it feels to personally find his or her own name, listed as a defendant, on a Bad Faith suit. This will get the attention of a claims supervisor, and things should start to be taken a lot more seriously,” my insurance colleague stresses.
He added, with a wink, “But don't tell them I said so.” Who, Me?
Finally, in case you think that your agent will be there to help, both my retired Farmers claims adjuster and lawyer friend have this comment: “It is the rare insurance agent who goes to bat for his client, even so-called independent agents. They work for the insurance industry, and in reality have little power to influence claims.”
Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to him at (661)323-7993, or you may e-mail him at Lagombeaver@hotmail.com
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