DO I NEED TO GIVE A TAPED STATEMENT?

INTRODUCTION

If you have been injured in an auto accident and you are filing a claim with the other driver's insurance company, you need to know what to expect in dealing with the adjuster and how much information you are required to give her. First the basics: In order for the adjuster to accept a claim, she needs to verify coverage - was the insurance policy in effect at the time of the accident? And, was the driver covered under that policy? Many times coverage is declined because the driver was specifically excluded under the policy. Once coverage is accepted, the next thing the insurance must do is to determine if their insured was at fault. This is referred to as accepting liability and can be done by reviewing the crash report, talking to their driver, and talking to witnesses. But the adjuster also wants to get your side of the story.

Chances are, within 1 to 3 days after filing your claim, the adjuster will ask you for a recorded statement. Adjusters love to take a claimant's recorded statement. Why? Because it can only help the insurance company and hurt you. But do you really have to give one? The answer is almost always: "NO." In this paper, I will discuss recorded statements and your rights in the claims process.

HOW ARE RECORDED STATEMENTS TAKEN?

Most recorded statements are taken by phone, but some adjusters will take them in person. Usually, the adjuster will ask you if you will consent to being recorded. If you agree, the adjuster can proceed with the statement, or will set up a time in which she will call you and take it.

WHAT WILL THE ADJUSTER ASK YOU?

Most recorded statements have a definite pattern, so much so that I can give you an outline of what to expect. First, as soon as the adjuster turns on the recording device, she will ask your permission to tape- record you. Once you agree, the next set of questions involve your personal information: Your date of birth, address, phone number, social security number, driver's license number, and the name of your spouse. Then, she will ask you about the accident. This includes the when, where, and how questions, such as: where you were going, the street and approximate block number and intersection, the time of day, the weather, your speed, the posted speed limit, whether you were on any type of medication, and whether you had consumed any drugs or alcohol. She will also ask you when you first noticed her insured, how fast her insured was traveling, what part of her insured's vehicle hit what part of your vehicle, what you are claiming her insured did to cause the accident, what was said after the accident and by whom, and whether there were any witnesses. She will also ask if you hit anything inside your vehicle, such as the arm rest, the steering wheel, etc.

Next, she will ask if anyone was hurt. When you tell her you were hurt, she will ask what parts of your body were hurt, whether you have ever injured these areas of your body before, what kinds of medical treatment you have had, and a list of the medial providers you have seen for your injuries. The final question all adjusters ask is if there is anything you wish to add. Do not fall for this, as she is just hoping you will volunteer something she has forgotten to ask or volunteer something that she can use against you. Always answer "no" to this one.

WHAT IS THE ADJUSTER REALLY ASKING?

The adjuster is really asking questions designed to pin you down and minimize your claim. She is looking for information that can hurt you and therefore help keep her company's costs down. Remember, liability is usually never the issue - damages are. In other words, in a typical car wreck, either a rear-ender or stop sign case, the adjuster knows her insured is at fault and that her insurance company will have to pay you money. What she is trying to do is limit how much money will be paid.

A simple rule to remember is a recorded statement can never help you but it can frequently hurt you. If you tell her your back hurts but forget to mention that your knee also hurts, this can be used against you later. If you tell her you hurt your shoulder and also tell her you have hurt that shoulder before, she will try to show the jury your shoulder never healed from the first injury and that her insured should not be made to pay 100% for that injury. If you tell her you were going 45 in a 45 but in reality the posted limit was 35, she can try to show your speed contributed to the accident. If the statement was taken the day of the accident or the next day, you may not be aware of everything that is hurting you because of the adrenalin that has flooded your body as a result of the excitement of the accident. She can make it seem like you are just after money if three days later you tell your doctor you are in extreme pain and you are extremely stiff. Do you see how this game works?

CAN MY CLAIM BE DENIED BECAUSE I DIDN'T GIVE A RECORDED STATEMENT?

Of course not. The crash report and/or your attorney, and your medical records can answer all of the adjuster's questions without the need to waste your time giving a taped statement. The only things an adjuster needs to know to settle a claim is your personal information (your attorney can provide this to her), the facts surrounding the accident (the crash report can provide this), and a good understanding of your injuries and medical costs, which she will find in your medical and billing records. If the adjuster has the crash report (assuming it is favorable to you) and she tells you she cannot accept liability unless you give her a recorded statement, she is lying to you.

ARE THERE EXCEPTIONS?

Exceptions to the information above are very rare. I suppose you can imagine some circumstances in which a statement may be helpful to clear up some narrow issue. Or, in cases where the police were not called, the adjuster will need to know your side of the story. Even then, however, your attorney can summarize what you have told him so the adjuster can match that up with the property damage and with what her insured has told her. This should be enough for her to determine if her insured was at fault.

NON-AUTO CASES

Accidents that do not involve an on-scene, impartial investigation usually require a recorded statement so that the adjuster can hear your side of the story. In a trip and fall or slip and fall, for example, unless it happened inside a store where security cameras capture every customer's every move, chances are no one saw you fall. Sure, your attorney can tell the adjuster your side of the story for you, but I take the position that, if I cannot prepare my client to pass muster with the adjuster, I shouldn't be taking his case in the first place. I simply make sure my client is well prepared, knows every question that could come his way, has time to think fully about his answers ahead of time, and that he can logically demonstrate what happened in a walk-through of the incident. An experienced attorney and ample preparation are key here.

CONCLUSION

There is a lot more to recorded statements than you think. It is never wise to underestimate the adjuster or to think she is on your side or that she will be fair and impartial. She does, after all, work for the insurance company and if she takes your side, she will likely lose her job. If you have been in a serious injury, you should seek representation from an experienced attorney. Please refer to my paper title Do I NEED TO HIRE A LAWYER AFTER AN AUTO ACCIDENT. Good luck and may you recover from your injuries quickly and fully.

Robert Rodriguez

Attorney