Recorded Statements to Insurance Adjusters
Please say one 100 times and write on the board 50 times: "I will politely decline to give any recorded statements to any insurance adjusters at any time."
You will barely be able to believe the pressure that insurance adjusters will put on you to make a recorded statement. It is against the law for them to record you without your permission, and they likely will not do that. They have to ask you.
Why do they try so hard to get a recorded statement? Why is it in your interest to never, ever give them a recorded statement? First, let's examine who is trying to get your statement and the purpose. Your insurance company, the first party carrier, will try to get your statement as part of its investigation into the accident. The adjuster will tell you it is your duty under the contract to cooperate with them and furnish the information.
The tortfeasor's insurance company, the third party carrier, will try to get your statement under the ruse that it needs your version of the accident - just for the records - to confirm liability against their insured, and they need your medical information to make a fair settlement. So, then, why don't you just cooperate and give them a recorded statement so they can get on with it and settle your case?
You don't do that because of the unstated, real reasons both companies want your recorded statement. Interestingly, both adjusters, although they come from different perspectives in the case, seek to record you for precisely the same reasons. The recording is a great convenience for them. They don't have to take the time to get a written statement from you, and you can simply give your version over the phone. When it is done, it is in the record, the case is documented, and they can move forward. It may be as innocent as that. However, most of us are not prepared to give recorded statements at any time during our case, and most particularly at the outset, which is precisely when the statements are requested.
Why are we not prepared to make recorded statements? Most of us do not think well on our feet under circumstances involving the pressure of answering questions for a recording. We tense up. We forget important things. We answer questions in a roundabout way or incompletely, and none of the information comes through in a precise and thorough manner as it will when you put it down in writing.
Another problem is that after you have made the recorded statement, it is absolutely impossible to correct or expand upon what you said in the recording. How can you change your story six months or a year later, when it was given with your full cooperation at the beginning? Are you now changing your story to suit your needs for continued treatment when your insurance company wants to cut you off after an IME? Are you trying to gain an advantage for settlement with the tortfeasor's insurance company by changing your story? They will not easily allow you to modify what you recorded.
Let's look at the techniques they will use. The first one is the casual, friendly technique. They will say it is for your benefit as well as theirs. They will say they are there to help you resolve the claim and to prove your claim. They will say they are going to help you pay your doctor bills, and your cooperation would be much appreciated.
Whether first party or third party, that voice on the other end of the line is not your friend, is not your good neighbor, and has her hand firmly planted on your wallet. She is your adversary. Treat her as such. She is also a trained adversary. Some insurance adjusters are excellent at getting you to say something which could be considered an admission of some fault on your part or - with respect to the degree of trauma incurred in the accident - something which would limit the seriousness of your injuries.
In addition, you cannot - at that early stage - have a complete understanding of all of your injuries. You may think that you understand your injuries within the first two or three weeks, but - believe us - if you have been involved in substantial trauma, your injuries will change and modify after the first two or three weeks. You may not even know it after the first week, but you might have suffered a low back strain when you were treated primarily for the acute cervical pain. When you hit your head on the side window, you may have suffered a TMJ injury, and the first signs of that TMJ injury may not be recognizable by you even 10 days after the injury. When you leave that information off, you cannot come back and change it. The insurance adjuster wants you to give incomplete or inaccurate information because she is going to make you stick to it later on.
If your own carrier says that you have a duty to cooperate, and that giving a statement is part of that duty because otherwise they cannot pursue their subrogation against the third party, then what? Tell them that you will cooperate fully when the subrogation claim is ripe. You have no obligation to give a recorded statement. Tell him that you would be pleased to cooperate fully by giving a written statement as to how the accident occurred. Alternatively, ask him to wait until he sees your PIP/MEDPAY form. Then, if he has any questions, he can ask a specific question and you can answer it in writing.
If he further insists that you are breaching your duty under the contract, call your Insurance Commissioner and get her opinion about it.
Under first party claims, if there is an allegation of fraud, you can be required to participate in not just a recorded statement but also an examination under oath. Your continued receipt of benefits from the company can be conditioned upon your being examined under oath, as described in our section on Surveillance . However, this tends to be reserved for instances where fraud is suspected in UIM claims.
We do not think that the third party carrier will be abusive enough to claim that she has a right to a recorded statement. Stay in control of that relationship and let her know she is not going to get anything from you, other than your polite cooperation, until you send your demand letter.
As we always say, make notes and document everything. That includes confirming your conversations with the adjusters on these and any other topics. You can use our First Set of Confirmation Letters.
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