This is the first post in a series we’re calling The Anatomy of a Civil Case. Some of the conventional wisdom about what how a claim and litigation works is correct, lots more is simply wrong. Every personal injury case is unique to its specific set of facts, but some things are the same no matter the case. Our first edition is the Three Ways Insurance Companies Will Fight You.
An insurance company is a for-profit business. Car, homeowners, renters, medical, fire, doesn’t matter. Their #1 goal, like any for-profit business, is to make money for their owners. The only way insurance companies make money is bringing in more in premiums than they pay out in claims (and after paying for all those commercials on TV). Because their incentives are to avoid paying out on claims if they can.
The first way an insurance company can avoid paying is by denying coverage. Quite simply, if an insurance company doesn’t provide coverage in a specific case, then they don’t pay a dime. This is one they obviously prefer. Their dispute is based on the terms of the insurance contract that most of us never read. This commonly comes up when it comes to lending your vehicle to someone (the policy might exclude coverage, for example, to someone with a suspended license) or when a family member is not listed on the policy but it is their primary vehicle. If this becomes an issue, you will almost certainly need the help of an attorney to fight about the contract language.
The second way an insurance company can avoid paying is by denying fault. With the civil court system in Indiana, we use what’s called a “comparative fault” scheme. When a jury renders its verdict, it determines the plaintiff’s damages, and then allocates fault which determines how much the plaintiff’s award actually is. If a verdict is for $100,000 and the fault is 100% against the defendant, the plaintiff gets awarded $100,000. If the allocation is 90-10 in the plaintiff’s favor, the award is $90,000. It works like this all the way down to 50-50 (or $50,000 in our example). If the plaintiff is found to be more than 50% at fault, then they get no award.
If an insurance company finds any way to fight liability and lower their risk of paying on a claim they will. Even if the adjuster tells you they’ve accepted liability in a phone call, if it ends up in litigation and their attorney can find any reason to try and place fault on the plaintiff, they will. It’s just another way to add risk. Sometimes, police investigations are not done as thoroughly as we’d like, and the crash report even puts the plaintiff primarily at fault when they know they did nothing to cause the crash. In cases like that, an attorney has to use all of their investigative tools to “fix” the liability dispute if the insurance company is going to even be willing to make an offer.
The last way an insurance company can avoid paying is to minimize the injury. In other words, “you’re not hurt as bad as you think you are.” This is a tough one for people to take. They’ve been in a crash, been hurt, gone to the doctor and received treatment, missed work, and still struggle day-to-day with their injuries. But regardless of everything a plaintiff does, the insurance company only has incentive to minimize it. Did you wait 2 days to see a doctor? Must not have been hurt that bad. Miss a physical therapy appointment? Didn’t care about getting better. Get a second or third opinion when you weren’t getting better? You were doctor shopping. None of these things are even necessarily true, but if an insurance company can get you or a jury to second guess the seriousness of an injury, they can use that as a reason not to pay.
Cases are often very complex where we have to deal with eye-witnesses, doctors, defendants, and expert testimony. But at the end of the day, the defense will boil down to one of the three broad topics above. They are the only bullets in the insurance company gun. It can be overwhelming to be told by someone you’ve never met that a crash was your fault or your injuries aren’t that bad. If you ever feel like an insurance company is giving you a raw deal, call an Indiana personal injury attorney like Ladendorf Fregiato & Bigler and see if we can help.
Watch out for next time when we discuss Part II – Getting Medical Care: Being your own Advocate.
Be safe out there!