20 Oct


More often than not, if there is an insurance policy out there, it may very well (or at least arguably may) cover the conduct or accident involving you. Many policies may be used one after the other in an additive way. This depends on policy language and clauses, and to some extent state law. If uncertain if there is coverage, it is best to tender a claim to ALL possible involved insurance companies. If they believe the matter is not covered, or should be denied, make them place that answer to you in writing. Always seek to make sure that what is told to you is put in writing. If this is not done, and you are answered telephonically, as a minimum do what many attorneys do, write a “confirming” letter regarding any important issues.

For example, write an insurance company, “This is to confirm our telephone conversation of the date of – -/- -/–, wherein you and I spoke and you indicated X, Y and Z. If this is NOT accurate, or not your recollection, please write me back immediately and correct my misunderstanding.” This helps because it not only memorializes the conversation, but it puts the onus on the insurance company that if they do not act or write to correct this, then things will be considered to have been as you described them in your letter.

Likewise, it is often wise to send materials to insurance companies via fax and letter (registered mail, return receipt requested). Retaining and attaching to the correspondence the receipt, for use later as proof of notice and knowledge of the matter, if forced into litigation. Insurance companies as well as attorneys for that matter, often have conveniently selective memory. Do NOT trust them and do NOT just believe them; ever. Not even once. Everything needs to be in writing to fully protect you. If it is not, if later the matter goes to trial; in court an insurance company can later deny it. To the court, it will be as if it did not happen! In the law, ORAL MODIFICATIONS TO A WRITTEN CONTRACT have no bearing and are not admissible, and this is very analogous to that principle. Involving in “He said . . ., she said . . .” before a court means very little. They require and rely on PROOF. Always document your claim, and any potential future lawsuit, as thoroughly as possible to avoid any future issues.

The very first issue you must deal with is NOTICE. Giving notice to any and all involved (or potentially involved) insurance companies is vital, and required in virtually every insurance contract. Insurance companies mandate that they be put on notice of claims (or potential claims) so that they may properly investigate, preserve evidence, take photographs and witness statements, and so on. There are many pieces of important evidence available at the beginning of a case, that might disappear later. Insurance companies want (and have a right) to adequately preserve evidence, investigate a matter and put on a defense if need be. Their rights can be materially affected by not giving them appropriate notice, and failing to do so is an excellent way to have a claim denied and/or pushed into litigation.

Further, if the insurance carrier is your own, 1st party coverage, failing to give them notice [or even timely notice] may give them cause to deny coverage altogether. Do not give them the easy way out! Always put insurance companies on notice, IN WRITING, at your earliest opportunity. If you have difficulty locating an insurance company or their claims office, the state insurance commissioner is an excellent resource in helping to find them. (And would also stand as evidence that you were trying to locate them and put them on notice)

Placing companies on notice is as simple as giving them all of the germane facts. Essentially, what happened, when, the location, and if in an automobile claim (the information on the vehicle and the other driver). If you have filled out an accident or incident report, or a security department accident form, or a police report; any paperwork you have filled out already, should be sent to them in the form of a “courtesy copy.” They are going to obtain this material anyway, you might as well be as helpful and cooperative as you can right from the beginning. This sends the right message and the adjuster will appreciate it.

Sometimes, you will encounter people who do not want to notify the insurance company. They may be the third party driver that ran into you; the person whose car you are riding in; or the shop owner whose store you happen to be visiting, etc. Whatever the case may be, it is strongly recommended that you do not succumb to such advice. This is poor, and frankly, very self-centered, advice. The only one who benefits from this is the other party, not you. Many times (in fact, with the more serious disc type injuries), MOST of the time; you are not even fully aware of all of your injuries – or at least the full extent of them – early on. Sometimes it takes months, or even years, to fully comprehend the true nature and extent of your injuries, let alone undergo all the treatment, physical therapy, and possibly even surgery.

We cannot know everything that early on; and you do not want to do anything which could possibly impact your ability to receive medical care or compensation. Further, someone urging you to do this is doing themselves no favors either. By doing or encouraging this, they are placing at risk the very coverage that they paid for. Insurance companies can, and DO, deny coverage for just such behavior. This is all foolish and unnecessary. Make sure you report ALL accidents and incidents (make written reports) at the time they happen. You will be glad you did.

One additional positive point about placing the respective insurance carriers on notice, is that YOU will be the one placing them on notice. YOU will be the one filling out the incident or accident report, or even the police report. As such, it is a unique opportunity to state not only the facts, but to insure that important facts and facets of the case that would not normally be heard will see the light of day. Many times, the initial incident report becomes pivotal in the case later on. Would you prefer to leave the filling out of this important and vital document to someone else? Obviously not. Sometimes, this requires you to take the initiative, and actually go somewhere to fill out this report. You may need to travel to a company’s headquarters or security department to fill out an accident/incident report.

You may have to fill out forms with your employer if it is a work comp case. You may have to drive to a police station to fill out a report, as many large metropolitan police departments are getting overwhelmed and only respond to the most serious accidents, therefore leaving minor auto accident cases to fend for themselves. As such, you want to make sure that you get the facts straight and YOUR story out there, and there is no better way to do this than through the accident report. Sometimes, the opposing party files a police report, and it may skew the facts in their favor. Regardless of this, you still have a right to file your OWN report and version of the facts; and you should. You have the right to do this. So, spend the time to do this, and do it right and it will certainly pay dividends in the end.

Also, recognize that even if a report (or police report) is filled out by someone else, these reports [including a Police Report] is actually inadmissable hearsay and cannot be used at trial
– unless “party admissions” (statements made by the other party, directly to the person filling out the report). The reason this is “hearsay” is that the police office or security guard filling out the form was not there during the accident. Therefore, they could not speak directly to what happened. This only becomes different if the incident was actually witnessed by the party filling out the form. These reports are normally made for the insurance company, and for their consumption. So, if you can influence the facts or report things in a light most favorable to you, do so. If the facts are against you, take it with a grain of salt as 99%+ of the report writers were NOT THERE during the accident, and ultimately the report means very little, other than to identify the parties and the basic facts of the accident/incident.

In addition to policies being used one after another in additive fashion, policies (most notably some auto insurance policies) can also sometimes be “stacked.” This means if a certain coverage were had on a vehicle of “X” amount, and if there were three such vehicles and the same amounts of coverage on each vehicle from the same carrier; [even though the accident may have involved only one of the insured vehicles, the coverages from ALL of the vehicles may be “stacked” such that there is now three times the amount of coverage (3 times “X” coverage).

Thus, if “X” were $25,000.00 (say of UM coverage or medical payments coverage), stacking would now allow there to be $75,000.00 in overall coverage available to you [along with any other available or applicable coverages]. Policies may generally only be stacked by named insureds, resident relatives or family members. Sometimes uninsured passengers riding in the vehicle itself can also, but sometimes they are disallowed by the policy. (In which case, they would only get the single policy limit) Check your individual policy provisions.

This stacking is allowed in some insurance policies and some states, so you must look at the prospective policy to verify if this is allowed. Also, some states have or mandate “anti-stacking” language. (Nevada, etc.) This means that if there is no clear, anti-stacking language printed within the policy, that UM/UIM stacking is to be granted. Therefore, this type of multiple coverage can be CONSTRUED to be there, if it was not explicitly declined. The same thing applies to medical payments coverage (“med pay” provisions). Likewise, if either UM/UIM or med pay is not SPECIFICALLY DECLINED, it can be “construed” to be there; some states hold this as well. State law and the policies themselves need to be checked to verify this.

Also note, there are other unique provisions in some policies, such as “seat belt” provisions, wherein medical payments coverage or other coverages can be doubled (or the like), if seat belts were utilized in the accident. (Nationwide, Colorado Casualty, etc.) The point is, there are numerous types of different policies and policy provisions. One must simply obtain the respective insurance policies and read them, before they can be properly employed.

In addition to the stacking of UM/UIM policies in some states, there are sometimes rules regarding hit and run type accidents. Many states allow for accidents such as someone running you off the road, where they did not actually strike you or your vehicle; but you were nevertheless injured. However, other states are more stringent and require that there actually be “contact” between the vehicles, a physical touching. This is driven by insurance company fears that people may abuse the system and have merely run off the road or fallen asleep; and are simply trying to blame their own negligence on some unknown third party. As was discussed previously, you cannot be at fault for your own accident and receive compensation for your injuries [although you COULD recover your medical payments coverage money, as this is paid irrespective of fault]. Unfortunately, what translates from “insurance company fears” often becomes the LAW. Pretty much whatever “concerns” the insurance companies, or whatever they want done; legislatures almost universally pass into law at one point or another. They are very attuned to the wants, needs and desires of the insurance industry. They have tremendous pull and influence, largely because they are among the biggest contributors to political campaigns.

At this point, it is important to make a couple of observations. First, just because many references have been made, and will be made, to auto accidents (they are by far the most common personal injury case), it does NOT mean that these ideas and principles will not, or do not, apply equally well to other areas of the law and insurance policies. (i.e. products liability, premises liability, professional liability [doctor, lawyer, CPA, dentist, etc.], and many other areas). Secondly, it is VITALLY important to spend (or rather, invest) a little time learning what the appropriate policies of insurance are, or may be, involving your case and claim; what their provisions are and how they may be used to your benefit.

This is so critical and vital to every case, but seldom done. Probably half of the attorneys out there do not do an adequate job of this in one way or another. This one step can pay off dividends in SO many ways: it can inform you of the ultimate amounts you may be able to potentially recover; if there are any prohibitory clauses; if the policy(ies) allows stacking; if there are doubling provisions or medical payments coverage; and 101 other things. You simply are not doing a proper job, or doing yourself any favors if you skip this step. DO YOUR HOMEWORK FIRST, and learn what the insurance policy covers and which provisions apply!