Common Tactics Used by Insurance Companies to Avoid Paying Full and Fair Value for an Injury Claim After a Car Accident

Navigating the aftermath of a car accident is stressful enough without having to face the tactics insurance companies use to minimize or deny your injury claim. This blog discusses some of the common tactics used by insurance companies that you should be aware of if you were injured in a car accident and need to make an injury claim with the insurance company. Understanding these tactics can help you better prepare and protect your rights.

Delaying the Claims Process- Time is Not on Your Side

One common tactic insurance companies use is to delay the claims process. Insurance companies often use delays as a strategy to wear you down. When you’re waiting for a response or a decision, it can be frustrating. They might drag out the process, hoping you’ll get tired and accept whatever they offer, or simply give up and go away without them having to pay anything at all.

One method insurance companies often use to delay your claim is by requesting unnecessary or duplicative documentation, repeatedly requesting unnecessary information, or simply take a long time to respond to your inquiries. Often, this will also involve switching your claim from one adjuster to another, with the new adjuster asking for the same information or documents that you just provided to the previous adjuster handling your claim. This may also include asking you to send the same information or documents multiple times under the pretext of telling you that the documents and information you previously sent is not in the insurance company’s system.

One way you can get ahead of some of these tactics is by keeping detailed records of everything that you provide to the insurance company and communicating everything to the insurance company in writing, whether that be by email, fax, certified mail, or some other shipping method with tracking. To help keep your documentation organized, it may be helpful for you to keep a separate file specifically dedicated to your claim, where you log all of your activity and communications on the claim in chronological order.

In addition to keeping a copy of any documents you provide with a copy of the correspondence to the insurance company delivering those documents, it is also best practice to log all telephone communications with the insurance company and send a brief letter, email, or fax confirming and summarizing any important phone conversations between you and the insurance shortly after they took place so that you have written documentation showing what was discussed in any phone conversations and when those discussions took place. The goal of keeping these detailed records and making sure all important communications either occur in writing or were confirmed in writing is so that you have clear documentation and proof of what was provided to the insurance company and when it was provided, what was discussed between you and the insurance company representative, in any important phone communications, and when those discussions took place.

Another delay tactic frequently used by insurance companies includes adjusters not timely answering or returning your calls, emails, or other communications, forcing you to play phone tag and try to chase down the adjuster handling your claim to communicate with them or get the information you need about the status of your claim.

Disputing Liability

Insurance companies often dispute liability to avoid paying out claims. They may argue that you were at fault for causing the accident, that both parties share the blame, that no one was at fault, or that other forces beyond anyone’s control caused the accident. By contesting who is responsible for the accident, they aim to reduce or eliminate their payout obligations. Some of the common legal theories insurance companies use to dispute liability in injury cases are the following:

• Contributory negligence

Most car accident claims are based on the legal theory of negligence, i.e. the at-fault driver failed to act as a reasonably prudent person would have acted in the same situation, and the at-fault driver’s unreasonable behavior caused the accident and resulting damages. Under Texas law, more than one person can be negligent. Texas law follows the rule of proportionate responsibility (also called “comparative negligence”), which means that at trial, the judge or jury decides whether each plaintiff, defendant, or responsible third party was negligent, and percentage of total responsibility each negligent party’s conduct played in causing the accident and resulting injuries. If a plaintiff is found to be negligent, his recovery is reduced by the percentage of his negligence. For example, if a negligent plaintiff was found to have $100,000 in damages and his negligence was determined to be 10% of the causing factor for his damages, he would be entitled to recover $90,000.00 from the negligent defendant(s). A plaintiff whose negligence is found to have caused 51% or more of his damages is barred from recovering any damages under Texas law.

• Unavoidable Accident

An unavoidable accident is an event that is proximately caused by an unforeseeable, nonhuman condition, not by the negligence of any party. Dillard v. Tex. Electric Co-Op, 157 SW 3d 429, 432 (Tex. 2005). The instruction regarding the doctrine of unavoidable accident is given to jurors at trial to ensure that the jurors understand that they do not necessarily have to find that one of the parties was at fault for causing the accident. Bed, Bath, & Beyond, Inc. v. Urista, 211 SW 3d 753, 757 (Tex. 2006). The unavoidable accident instruction is most often used in situations where weather conditions or other physical circumstances may have played a role in causing the accident, but it is not limited to just those situations. To reduce the payout on your injury claim, the other driver’s insurance company may use this legal theory to argue that the accident was unavoidable and not the fault of their insured driver.

• New and Independent Cause

A new and independent cause is one that intervenes between the initial wrongful act and the final injury so that the injury is attributable to the new cause rather than the original and more remote cause. Dew v. Crown Derrick Erectors, Inc., 208 SW 3d 448, 450 (Tex. 2006) (plurality op.) A new and independent cause cannot arise from the negligence of the defendant or the plaintiff. Motsenbocker v. Wyatt, 369 SW 2d 319, 324 (Tex. 1963). To reduce the payout on your injury claim, the other driver’s insurance company may use this legal theory to argue that the accident was not caused by the fault of their insured driver.

• Sudden Emergency

A sudden emergency jury instruction is appropriate when (1) a person was confronted with a situation that arose suddenly and unexpectedly, (2) the situation was not caused by any negligence on the part of the person confronted by the emergency, (3) a reasonable person would have believed the situation required immediate action without time for deliberation, and (4) the person acted as a reasonably prudent person would have done under the same circumstances. hMcDonald Transit, Inc. v. Moore, 565 SW 2d, 43, 45-46 (Tex.1978). Insurance companies use the sudden emergency defense to claim that there was nothing their insured could do under the circumstances and therefore he should not be required to pay any damages.

• Responsible Third Party

A defendant can designate a person alleged to bear some responsibility for the plaintiff’s injuries as a Responsible Third Party. Tex. Civil Practice and Remedies Code 33.004 (a). If a Responsible Third Party is timely and appropriately designated by a defendant and that designation is not subsequently struck on the plaintiff’s motion, any negligence or fault of the Responsible Third Party will also be considered by the jury at trial pursuant to the rule of proportionate responsibility (also called “comparative negligence”). If any percentage of fault in causing the plaintiff’s injuries is determined to be on the Responsible Third Party, the plaintiff’s recovery will be reduced by that percentage. If a defendant designates a Responsible Third Party and the statute of limitations has not expired, the plaintiff has the option to name the Responsible Third Party as an additional defendant in the case. If the plaintiff chooses not to do so, or if the statute of limitations has expired and the plaintiff cannot add the Responsible Third Party as a named defendant to the case, the Responsible Third Party is not actually a participant in the case. However, the issue whether the Responsible Third Party played a role in causing the accident and resulting damages are still issues that will be considered at trial, and any amount of damages which are determined to have been caused by the Responsible Third Party would not be recoverable by the plaintiff, since the Responsible Third Party was not a participant in the case and therefore cannot be required to pay damages for a judgment resulting from a proceeding in which he did not take part. Essentially, the tactic of naming someone a Responsible Third Party is frequently used by insurance companies to point the finger at someone else and blame someone other than their insured for causing the accident and resulting damages.

In addition to the legal theories listed above, insurance companies may use a number of other legal theories to claim that the accident and your resulting injuries were caused by factors other than the fault of their insured driver.

Downplaying and Disputing Your Injuries

Another tactic is to downplay the extent of your injuries. Insurance adjusters might claim that your injuries are not as severe as you report, or that they are pre-existing conditions unrelated to the accident. Some of the ways that insurance companies do this are the following:

• Claiming Your Injuries Were a Pre-Existing Condition

The pre-existing condition defense is used by the insurance company to claim that the person injured by their insured suffered from a pre-existing medical condition, not caused by any action or inaction on the part of their insured. In other words, the defense is used to allege that the symptoms and injures at issue in the injury claim were not caused by the crash, but rather that the claimant was suffering from these injuries and symptoms before the accident ever happened, and these medical issues being experienced by the plaintiff pre-date the car crash. Under Texas law, if the plaintiff was suffering from any pre-existing medical conditions before the crash, he is only allowed to obtain damages for any aggravation or worsening of the pre-existing symptoms caused by the crash. To be entitled to the submission of a pre-existing condition instruction to the jury, Defendant must present evidence showing that the damages Plaintiff is seeking were in whole or in part a pre-existing condition of the Plaintiff or resulted from an aggravation thereof. Davis v. Moreno, 579 SW 2d 309, 312 (Tex. Civ. App.- Corpus Christi, 1979, no writ).

When an injury claim is made after a car accident, insurance companies often look for anything besides the car accident which they can blame for causing your injuries so that they can avoid paying full and fair value on your injury claim. This is why one of the first things that insurance companies will often ask you to do after you open an injury claim is to sign a form allowing them unlimited access to all of your medical records from before the crash. You are not legally required to allow insurance companies this type of unlimited access to your health information, and it is not truly necessary for the insurance company to have access to your entire medical history in order to evaluate your injury claim. The reason that insurance companies request this information is so that they can comb through your past medical history for anything at all which they can point to as evidence that your injuries from the car accident were allegedly pre-existing before the crash.

• Claiming Your Injuries Were Caused by Things Other Than the Car Accident

Insurance adjusters have no special medical training or other qualifications that give them the special knowledge to make medical diagnoses about whether your injuries were caused by the car accident for which you are making an injury claim. However, that does not stop insurance adjusters from frequently using their own unfounded and unqualified medical opinion to dispute the cause of your injuries. When an injury claim is made after a car accident, insurance companies often look for anything besides the car accident which they can blame for causing your injuries so that they can avoid paying full and fair value on your injury claim. In addition to your medical records, insurance companies will frequently try to use your employment or your activities against you. Real-life examples of this include insurance companies trying to claim that because someone played football or another contact sport or worked a manual labor job, their injuries were caused by their other activities as opposed to the car crash. Insurance companies will shamelessly make these claims without a shred of medical evidence to support them in order to avoid paying full and fair value for your injury claim.

• Claiming You Made Your Injuries Worse by Failing to Mitigate Your Damages

Under the doctrine of mitigation, a plaintiff has a duty to exercise reasonable care in mitigating their damages. Great Am. Ins. v. North Austin MUD, 908 SW 2d 415, 426 (Tex. 1995). If you did not immediately seek medical treatment after your accident, had to miss scheduled medical treatment at some point because of unforeseen life circumstances, had to return to work sooner than your doctor recommended because of necessity, chose not to get a recommended medical procedure done to treat your injury symptoms, or had any remotely similar situation occur at any point in relation to your medical treatment after your accident, the insurance company may try to claim that you failed to mitigate your damages and made your injuries worse. In most cases, it does not matter how accurate this claim actually is and whether there is any medical evidence to support it- the insurance company is simply looking for an excuse to avoid paying full and fair value on your injury claim, and the allegation that you failed to mitigate your damages is a pretext insurance companies use often to avoid paying the full value of your injury claim.

• Diminishing and Disputing Your Injuries Because You Did Not Get Immediate Medical Treatment

If you did not seek medical treatment immediately after your accident, the insurance company will often argue that you were not truly injured as bad as you claim because you did not immediately go see a doctor. There could be a million reasons why you did not immediately seek medical treatment. Some of the most common issues that can prevent you from immediately seeing a doctor after your car accident are that you may not have felt your symptoms until the next day after the crash, you may not have been able to get transportation to see a doctor, you may not have been covered by medical insurance and had no way to pay for the medical treatment that you needed. None of that matters to the insurance company, which is looking for any excuse to avoid paying full value on your injury claim and will frequently use any delay between the car accident and the time you begin medical treatment for your injuries as a basis for refusing to pay full and fair value on your injury claim.

Using Your Statements Against You

Insurance companies may use your own statements against you and twist your words to suggest you admitted fault or downplayed your injuries. This is especially true when an insurance company obtains a recorded statement from you without an attorney being present on the call or at the in-person meeting to protect your rights. If you are making an injury claim with the other driver’s insurance company, you are not required to provide them with a recorded statement. However, one of the first things they will do is ask you to provide one under the pretext of needing it for their investigation. Many times the insurance company will try to obtain your recorded statement shortly after the accident while you are still shaken up and don’t have you full wits about you. This is not coincidental, as insurance companies can then twist your words and the way you answer certain questions to distort the truth and use your own words against you. This is especially true in situations where you are making a claim with the other driver’s insurance company. This is because under Texas law, liability insurance cannot be mentioned in most personal injury trials. Without being able to mention insurance or insurance adjusters, it is extremely difficult to provide the proper context to explain why you may have said something in a certain way during your recorded statement and explain the truth about the circumstances under which your recorded statement was given. Insurance companies want to avoid paying full and fair value on your injury claim, and one of the most common ways they do this is by taking your own words out of context and distorting them to use them against you.

Insurance Companies are More Likely to Use these Tactics if You are Making an Injury Claim With the Other Driver’s Insurance Because They Caused the Accident.

The worst examples of these types of delay tactics usually occur in situations where the other driver was at fault in causing the accident and you are making an injury claim with the other driver’s insurance. These types of claims are generally classified as third-party claims under Texas law, meaning that you are filing a claim with the other driver’s insurance, as opposed to filing a claim with your own insurance company, which would be classified as a first-party claim.

This distinction between first-party claims and third-party claims is extremely important in Texas because your legal rights and the obligations of the insurance company vary significantly depending on whether you are making your injury claim with your own insurance company or making your injury claim under the other driver’s insurance.

In situations where you are making an injury claim or any other kind of first-party claim with your own insurance company, your insurance company owes you specific legal duties in relation to your claim. The most important of these include: the legal duty to timely process and pay your claim in accordance with the requirements of Texas Insurance Code Chapter 542, the legal duty to avoid engaging in deceptive claims handling practices when processing your claim in compliance with the requirements of Texas Insurance Code Chapter 541, and the requirement to process and evaluate your claim consistent with the legal duty of good faith and fair dealing. USAA Tex. Lloyds Co. v. Menchaka, 545 S.W.3d 479 (Tex. 2018).

On the other hand, in situations where the other driver was at fault in causing the accident and you are making your injury claim with the other driver’s insurance, the other driver’s insurance does not owe you any legal duty at all, since you are not their insured nor their policyholder and they have no direct contractual relationship with you. That means there is no specific prohibition preventing the other driver’s insurance company from delaying the handling of your claim, because the requirements of Texas Insurance Code Chapter 542 do not apply to third-party claims.

Because the other driver’s insurance company does not owe you the same legal duties as your own insurance company if you are making an injury claim, you are more likely to encounter some of the above-listed tactics if you are making an injury claim with the other driver’s insurance company after a car accident than you would if you were dealing with your own insurance. By understanding the difference, you can be mindful to watch for these tactics if you encounter them when you are making your injury claim.

Hire the Right Attorneys for Your Car Accident Injury Claim

The attorneys at the Kishinevsky Law Firm PLLC are here to help. Our law firm has helped numerous clients who were injured in a car accident to obtain full and fair compensation from insurance companies trying to wrongfully deny or low-ball their claim. If you or a loved one is was injured in a car accident and you need our help dealing with your injury claim, contact our office today for a free consultation.