Chapter 10: Filing a Wrongful Death Claim with an Insurance Company

Filing a wrongful death claim with an insurance company in OhioWhen a wrongful death takes place, the insurance claims process usually begins immediately. This means the personal representative and/or surviving family members must also take immediate action.

This should include, as necessary, preserving all the evidence from the accident, hiring experts to inspect any vehicles and/or the accident scene and obtaining witness statements. Many times, important evidence is lost if such actions are not taken immediately.

If there is a dispute as to the facts of an accident, you will need to make certain the at-fault party does not destroy any critical evidence or information. You can assume the insurance company is looking out for its interest. This fact makes it very important for you to look out for your own. What the insurance company wants and what would be best for the surviving family members are not often the same outcome

Although the police may investigate an accident, their investigative materials may not be available for a long period of time. In other instances, the police investigation may not be completely thorough or not address certain issues and questions that could be important or relevant in a wrongful death case. Evidence that would be vital for a civil case is not necessarily the same evidence that is crucial to forwarding a criminal case, which the police tend to focus on more during their work.

Every available piece of information should be gathered and kept so that it can be reviewed later either by an expert or an attorney. Experts know what evidence to collect, how to preserve it, and how to evaluate the importance or relevance of that evidence.

The Insurance Claims Process

The insurance adjuster assigned to your case is charged with trying to settle the claim expediently and at a low dollar figure before you have a true understanding of the claim and what it may be worth. What may seem like a large sum of money can be an inadequately low amount, relatively speaking.

Sometimes the adjuster will attempt to settle quickly to prevent you from hiring an attorney who could better represent your interests. The insurance company knows an adept attorney will likely have better leverage when negotiating a wrongful death case and can recover much more money than they are offering initially.

Your best interests and the interests of the insurance company are not the same. Insurance companies are looking for any reason they can to deny or minimize a claim. The insurance company cannot be trusted to protect the surviving family members’ interests, no matter how compassionate and caring the insurer’s representative may seem.

Filing a Wrongful Death Claim

If the death involves an auto accident, the first step is to contact your insurance agent and let him or her know that an accident has taken place. In most other accident cases you should contact the at-fault party or that party’s insurance company, and you will want to obtain the claim number from them. If a claim has not been opened, you will want to give the carrier some basic information about what occurred. This may include the date and location of the accident as well as the names of the individuals involved.

You may instinctively want to delay talking to an insurance adjuster about the specifics of the claim until the initial shock has worn off regarding your tragic loss. It is difficult to believe, but there are insurance adjusters who will use a family member’s shock and grief to their advantage. If you are distraught and overwhelmed by the loss of a loved one, you might say or do things that will impact the claim in the future. Statements you make about the deceased or what happened in the accident can be used against you at a later time.

Speaking with the Insurance Claims Adjuster

When pursuing a wrongful death claim you will likely be interviewed by a representative from your own insurance company, the deceased’s carrier, the at-fault person’s insurance company or by all three. You might think the adjuster is trying to help you especially if they are from your insurance company. But each insurance company adjuster owes his or her allegiance to the insurance company, not to you. Consider the following recommendations when talking to an insurance representative:

  • Prepare for the meeting by speaking with an attorney. Take the time to fully understand the process and make the most of your attorney’s expertise and experience.
  • Before you get started with the interview, write down the name, address and phone number of the insurance adjuster and insurance company.
  • Provide your full name, address and telephone number to the adjuster.
  • If possible record the conversation. If you cannot record it, take good notes.
  • Ask the adjuster if he or she is aware of any witnesses to the accident.
  • Tell the truth. It is imperative that you are truthful always during the interview. Lying or exaggerating can be harmful to the claim. It is okay to answer, “I do not know” or “I don’t understand.”
  • Be cordial and treat the adjuster with respect but be firm and assertive when necessary.
  • Answer questions with “yes” or “no” that require it. Not every answer requires follow-up, so try and avoid rambling when answering questions.

Things You Should Not Do

  • Do not agree to have the conversation recorded by the insurance adjuster unless your attorney is present for the interview, whether in person or also on the call by telephone.
  • Insurance adjusters will try to engage you in an informal conversation to have you relax and get as many details about the accident as possible. Be aware of this tactic.
  • Do not agree to anything. The interview should be about collecting information, NOT about your agreement to anything.
  • DO NOT SIGN ANYTHING. No matter what the insurance adjuster faxes or mails to you, never sign any sort of document. Instead, give all documents to your attorney for review.
  • Remember that during an interview with the adjuster you are not obligated to identify witnesses.
  • Avoid talking in absolutes. In other words, do not give exact distances, times, etc. Always use qualifying words such as “approximately” when describing the details surrounding the accident.
  • When you report the accident, give general information. You should always speak with your attorney before giving a formal recorded statement.
  • Do not argue with or get angry at the adjuster. This will make it much more difficult to obtain a fair settlement of your case.
  • Do not guess at the meaning of any question. If you do not understand what is being asked, request that the question be repeated or clarified. “I don’t know” is usually an adequate answer if you don’t understand the meaning of the question.
  • Do not volunteer information. Make sure you fully answer the adjusters’ question and then quit speaking. Although it is important to always tell the truth, it is also important not to give more information in your answer than necessary.
  • Do not interrupt when the interviewer is asking the question even if you think you already know the answer.
  • Do not allow the adjuster to assume facts that are not true when asking his question. Always correct or clarify any untrue facts.
  • Do not give long, narrative answers. Short and concise answers are best.

How Does the Insurance Company Operate?

In its most simplistic form, the insurance company must take in more money than it pays out. An insurance company will focus on selling more policies and minimizing its liabilities. Any claim is a liability because the insurance company has to pay out money to settle the claim. The insurance adjuster’s job is to settle claims for as little as possible while other people working for the company try to sell more policies.

If the adjuster can spot a defense or weakness in your claim, then his or her job is to make sure the defense or weakness is exploited fully so the insurance company can limit any payout. Sometimes an insurance adjuster can manufacture a defense or claim in the case. This is done by obtaining favorable statements from you and other witnesses.

To achieve your goal of recovering a fair and reasonable settlement you must provide the insurance adjuster with strong reasons that it should pay out more to settle the claim rather than less. This may be accomplished by providing the adjuster with certain information or documentation to support your claim. There are certain pieces of information that may be more persuasive than others. How relevant the information depends on the facts of the case and the status of the law that applies to the claim. Keep in mind that the more compelling the evidence submitted to support the claim, the higher the likelihood it will result in a more favorable settlement recovery.

How Claims are Evaluated

Statistically, more than 90 percent of all wrongful death claims are settled prior to trial – either during the claims process or during the litigation period before a trial. A fair and reasonable settlement may be successfully negotiated if your claim is properly documented, presented, and argued to the insurance adjuster. To do this, factors may include:

  1. The facts of the accident giving rise to the claim. If the at-fault party’s actions are shockingly bad, the claim may be valued higher than if the acts amounted only to a simple mistake.
  2. Identity of the parties. If the death was caused by the actions of a sympathetic person (an elderly grandmother) then the claim may be lower than if the death was caused by an unsympathetic party (a large corporation).
  3. The cause of death is important. The claim may be worth more if the cause of death is uncontested. Similarly, if there are other explanations or prior medical conditions that could have contributed to the person’s death, the value of the case may be lower.
  4. The number and status of the beneficiaries. Usually, the value of a case is higher when the deceased was married with children. This is because each beneficiary has a right to claim compensation for the loss of the relationship.
  5. Pre-death suffering. The value of the claim may be higher if the deceased experienced conscious pain and suffering before death. Typically, the longer the period of time experienced the higher the value of the claim.
  6. Liability defenses. If the at-fault person can successfully prove that he or she was not at fault or that someone else was at fault, then the value of the claim might be lowered significantly.
  7. Information about the deceased. If there exists damaging or embarrassing information about the deceased (the deceased was not considered a good person, had criminal convictions, etc.), then the value of the claim may be less.
  8. The existence, or lack of, insurance coverage. There must be enough coverage to pay for all of the damages. If the at-fault driver was uninsured, you may not recover anything (assuming you have no additional coverage such as uninsured motorists or UM). If the other driver only had minimal coverage, then this may be all that you receive (unless additional coverage exists).
  9. The experience and reputation of your lawyer. If you have an experienced lawyer who regularly handles wrongful death claims representing you, this may increase the value of your claim in the eyes of the insurance company.

There is no magic formula for placing a value on the loss of a human life. Much of the loss or the amounts of damages that are legally recoverable are purely subjective in nature. The value of a claim is heavily influenced by the quality of the relationship between the deceased and the surviving spouse and/or children. Ultimately, the value of any given case is what a jury says it is. No two cases are alike and each one must be judged on its own merits given the facts.

The Settlement Package

When it comes to representing surviving family members in a wrongful death case, Slater & Zurz LLP goes to extraordinary lengths to compile and present an effective settlement demand package to the insurance company. We obtain all documents and materials that may relate to the claim and then organize and present them in the most influential and persuasive way possible to secure the highest recovery.

The settlement demand package may include many different types of documents, records and other items, including:

  • A complete discussion and analysis of the facts of the accident and the wrongful death laws that may apply;
  • Incident reports or police reports;
  • Copies of pleadings that are ready to be filed in court if the settlement does not occur (a complaint, or deposition notice, etc.);
  • Photos of the scene of the accident or of the injuries;
  • Medical records and reports;
  • Expert report findings;
  • Re-enactments and/or computer simulations;
  • Testimony from witnesses and/or experts;
  • Audio and/or video recordings;
  • Presentations showcasing the facts of a case;
  • Witness statements.

By providing a comprehensive settlement package, you are helping the insurance adjuster build his or her file so that the company can justify paying out a large settlement.

Providing this sort of package gives the insurance company many reasons for settling the claim immediately rather than going to court.

Settlement vs. Trial

Your primary goal during the claims process is to build your case by collecting and evaluating all the evidence that can help you secure a fair and reasonable settlement. There are many benefits and advantages to settling a case, including:

  • Avoiding the risk of trial. Litigation is risky because juries are unpredictable. It doesn’t matter how strong you think the case may be, a jury can always come up with arguments or reasons to justify a lower verdict or to side with the insurance company. Going to trial is always going to be a gamble to a certain extent.
  • Avoiding the expense of litigation and trial. Wrongful death cases are expensive to pursue. Attorney ethics rules require that the expense of litigation must be borne by the client although the attorney may advance these costs. Most of the expenses can come from hiring experts, paying for depositions, and creating trial exhibits.
  • Achieving final resolution of the claim and gaining peace of mind. There is certainly an emotional toll on family members who must participate in the litigation of a case. These cases also impose time requirements on family members. They may have to take time off work to attend a deposition and/or attend trial dates.
  • Avoiding further emotional pain. It can be difficult for family members to “re-live” the circumstances surrounding the death of their loved one. The litigation experience can delay closure and may bring up painful feelings of grief and sorrow, repeatedly. The grieving process may be stalled in ways until the case has officially concluded.

The disadvantage to agreeing to a settlement could be that you will never know what the jury would have done. It comes down to whether you want to take a chance at going to trial. The pros and cons of litigation and trial must be carefully weighed so that you can make the best decision for your family. Each case is different, of course, and involves varying legal questions that must be answered.

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