Occasionally in an injury claim, the "other side" -- whether it's an adjuster or an attorney, or the at-fault party him or herself -- will tell you “the law” says that you are liable for the accident. Most of these people, adjusters especially, are talking through their hats. Adjusters work for insurance companies. They have a general idea of what the law is on certain liability subjects, but rarely do they know the law in any detail. How should you respond? Read on for some tips.
Ask for Proof of the Adjuster's Position
If an adjuster claims that the law is on the insurance company’s side, demand proof. Ask the adjuster to send you the statute, rule, or regulation that the adjuster claims applies to your situation. If the adjuster does not send you any documentation of the law, then tell the adjuster that you cannot consider something that is undocumented. If the adjuster does send you something, make sure it is a copy of an actual legal rule or law and not merely an insurance company’s own memo, a letter from a lawyer, or some other unofficial opinion about the law.
When you get a copy of an official rule or law, read it carefully. Often what you will be sent is just a general statement of law that can be applied differently in different situations and does not answer the question of who was at fault for your accident. For example, a traffic law may state that the driver to the right has the right-of-way at a four-way stop intersection, but that doesn’t determine whether you got to the intersection first and had the right to go through the intersection before the other car, or whether the other car was careless in failing to stop at the stop sign.
If, despite your arguments, an adjuster continues to rely on an interpretation of a law that denies all liability by the insured, and refuses any settlement at all, you will have to turn to other negotiating options. For examples, see When You Can't Get a Fair Injury Settlement.
The Police Report Doesn’t Tell the Whole Story
Remember using a police report in an injury claim can be helpful, but the report is not the final word on liability. Especially in traffic accident cases, an adjuster will sometimes argue that nothing in the police report confirms your description of how the accident happened. You can point out that nothing in the police report contradicts your version of what happened, either, and that the police officer did not witness the accident, but arrived only after the event.
You have a more difficult problem if the police report specifically contradicts your version of whose fault the accident was. If the claims adjuster points out something in the police report that indicates you were at fault for the accident and suggests you have no claim at all because of it, there are several ways to respond:
- Remind the adjuster that the police report is not actual evidence because the police officer did not see the accident happen.
- Point out that the officer issued you no citation after the accident.
- Note that the reporting officer does not state any opinion about who was at fault.
- Remind the adjuster that the officer’s report is based solely on a rough reconstruction of the accident, done without precision, based on limited facts and resting on speculation.
These are all ways of saying to the adjuster that the police officer’s accident report is useless as legal evidence of what actually happened.
An attack on the legal value of a police report may or may not immediately get the claims adjuster to back off relying on the report in your settlement negotiations. But it will at least let the adjuster know that you know the police report is of limited help should your claim eventually wind up in court. And an adjuster who knows you will not drop your claim just because of a bad police report will get back to bargaining with you. However, you may have to lower your demand somewhat because of the report -- even if you think it’s wrong, it’s strong evidence in favor of the insurance company.
This article is an excerpt from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).