April 19, 2014 • By Dennis Beaver
Driving home, on the same road you’ve driven thousands of times, doing about 25 mph, suddenly, with no warning, a car pulls a U-turn right in front of you.
Attempting to avoid the accident, you veer to the right, but still collide, and next crash into a parked car.
The police come out, take statements and file a report which assigns 100 percent fault to the driver who made the illegal U-turn, as one would expect.
Sustaining “soft tissue,” whiplash injuries, a short course of physical therapy is prescribed. Your car is deemed a total by your insurance company.
“OK, Beaver, so where’s the meat? I don’t see a story,” you might be thinking right now, and if the insurance company for the at-fault driver were ethical and acted in a fair manner, there would be no story.
But that’s not what was to happen, for even with no evidence that you had done anything wrong, the insurance adjuster claimed that you were (1) speeding; (2) failed to take evasive action; and (3) “failed to maintain a proper lookout.”
If you ever thought that insurance companies were a big brotherhood and watched out for each other, playing nice among themselves, guess again.
Rather, it’s “no honor among thieves,” as this company refused to accept liability, forcing the matter to “Inter-Company Claims Arbitration,” which, just like the police, found 100 percent fault. Later an accident re-construction expert and police officers from two different cities would find you completely fault-free.
Still, they maintained that you were 50 percent at fault!
We’ve seen their funny ads
Without naming the company, you have seen their funny ads — at a cost of over 500 million dollars a year, close to 5 percent of premiums.
But what the cute commercials don’t reveal is a return to some of the worst claims practices seen since California had third party bad faith — meaning you could sue an insurance company for acting in bad faith when handling a claim.
That amazing window of time was David and Goliath, with insurance companies running scared, often over-paying claims out of fear, and it lasted from 1979 until 1988. Then, under great political pressure, the California courts took that right away from us all, and the cockroaches crawled out of the cupboards, insurance settlements becoming a fraction of what was fair.
“Your client should have anticipated the accident”
The most maddening justification for making a low-ball settlement offer was this comment from the adjuster:
“Your client failed to maintain proper lookout and should have anticipated the accident.”
“You mean, my client is required to be a mind-reader??” the lawyer replied. “How can you know someone is going to make an illegal U-turn???”
“If they maintained lookout, there would not have been an accident,” the charming adjuster repeated.” (At that time, your lawyer opened his desk drawer and removed a Voodoo doll, grabbing a handful of pins. He also reached for his emergency bottle of scotch.)
“But the courts define lookout as observing things in plain view, which are easily seen. It means being diligent, such as keeping a safe distance from other cars. If you don’t look, are fiddling with the radio or texting, sure, then you are not maintaining a proper lookout.
“And they don’t even remotely suggest that you have to anticipate someone making an illegal U-turn. How can you blame my client when your driver suddenly pulled right out in front and made the U-turn? Tell me that, please,” begged the attorney.
It was a conversation that went nowhere, and so, your lawyer asked to be connected with her supervisor who promised to have the entire matter “round tabled” with new adjusters. And their findings? Identical. Speed, failure to maintain lookout, and so on.
Get you and the law involved
“Beav, I need your help — Have I got a story for you,” was the call from your lawyer.
We contacted the Media Relations department of this insurance company and asked if they now have a “mind reading” requirement for anyone involved in an accident with their insured.
“We will have the matter looked at by a regional supervisor,” was the reply. And that’s exactly what took place, but did it change anything?
You bet your crystal ball! Without addressing the mind reading issue, an acceptable settlement offer was made. Nothing extravagant, just a fair offer.
The voodoo doll was put back in your lawyer’s drawer and the bottle of Johnny Walker remains unopened to this day.
Moral to our story: Even if you are handling your own auto accident case, when the adjuster is a colossal jerk, escalate the matter, speak with a supervisor and, if need be, the supervisor’s supervisor.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.