Birmingham Injury Blog

When we first started practicing law in the 90s we could not force the defendants to reveal the limits of their insurance policy in state court but this changed a number of years ago. This has helped in settlement negotiations as it helps when we have the same knowledge as the defendant as to this critical issue - how much insurance is out there.

If the defendant has a small amount of insurance, then we can tell our clients this and decide if settling is the right option even if the amount is lower than any of us would like.

If the defendant has a high amount of insurance (for example in one trucking case the primary insurance was 1 million and the excess was 25 million) then everyone understands that a large verdict could be paid from the policy.

It is odd but some defendants in state court still fight us on producing this information despite the rules expressly requiring the defendants to produce this. In federal court in one of our consumer cases the defendant refused to produce the policy because the defendant decided not to file a claim with the insurance company. The federal judge quickly ordered it to be produced as the federal rule is clear that insurance is discoverable.

Remember if you are in a wreck normally the insurance company will NOT tell you what the insurance limits are of the person who caused the wreck. But if you file suit you can discover this information and it is very helpful to know.

We'll write more about the discovery process in the near future.

Thanks to the excellent blog "Day on Torts" by John. A. Day for reminding us to discuss this concept - Tennessee just ruled that insurance limits in Tennessee are not discoverable.

The American Association For Justice has a wonderful report which exposes many of the dirty tricks of big insurance companies.

We will write more about this report but in the meantime, feel free to download it to start learning more about some of the more popular tricks of insurance companies. These are tricks (dirty tricks) that Stan and I have litigated over many years. I can assure you this report is consistent with what we have seen.

We have always had a problem in Jefferson County (and other counties in Alabama) with uninsured drivers sharing the roads with us. This is a serious problem because these drivers can hurt us due to their negligence but they have no insurance to compensate us for our injuries. Now, with the economic problems, more and more drivers are dropping their insurance or they are letting their insurance lapse as there are fewer dollars to spend and some view car insurance as a luxury.

The Wall Street Journal has an article on the rise in uninsured drivers. Here is a brief excerpt of what is typical in cases we see with uninsured motorists in Alabama:

Debbie Kuban, 47 years old, of Stratford, Conn., is glad she had uninsured motorist coverage, which is mandatory in her state, when a car she was riding in was hit by an uninsured driver the day after Thanksgiving. The driver of a pickup truck tore out of a shopping center parking lot in nearby Milford and slammed into the Audi A6 station wagon her husband was driving.

Ms. Kuban, an operating-room nurse, suffered a gash in her head that required stitches and had two broken bones in her foot. She was taken to the hospital by ambulance. Her husband wasn't severely injured. Since then, Ms. Kuban has been recuperating at home. Because the at-fault driver had no insurance, Ms. Kuban has relied on her $300,000 uninsured-motorist policy for claims reimbursement. She says the other driver was charged with a misdemeanor for driving without insurance on a private road.

We recommend that you review your uninsured benefits and increase them to at least $100,000. Feel free to contact us if you have any questions - we can give you some suggestions on what to ask your insurance agent. Finally, we leave you with this sobering thought from the Wall Street Journal article: Insurance companies charge them more because they consider them irresponsible: Unlicensed and uninsured drivers are disproportionately involved in fatal accidents.

Alabama consumers who have been injured in a car wreck or a truck wreck often assume, quite naturally, that the jury will know that the defendant who caused the wreck and caused the injuries has insurance through State Farm, AllState, etc. The jury, after all, knows that the injured victim has health insurance such as Blue Cross but it is quite surprising to find out that the jury can never know that the defendant has insurance.

The reason that is always given for this rule is that a jury might decide against the defendant, not based on the facts but on whether the defendant has insurance, figuring “Well, here she has insurance, so it won’t really hurt them if we give a verdict.” We have never met anybody with this actual mindset as everybody understands if you award money when the plaintiff is not entitled to it, then that can have a bad impact upon the system and insurance rates. But what happens is since the jury does not know about the insurance, they look at somebody and oftentimes they will take the opposite approach of assuming that the person cannot pay and therefore they do not find against the defendant even if the defendant is at fault.

Trial judges do not have any discretion in this matter and until the law is changed, this is the way it will be. If you have been in a automobile accident or in a truck wreck or otherwise suffered a personal injury, particularly if it is due to the negligence of an individual, then you do need to keep this in mind as you are evaluating potential settlement offers.

We will continue to explore various parts of how a trial works in a personal injury case, but this is a question which is raised quite often by clients and jurors after a trial and everybody is surprised that insurance cannot be mentioned. Please feel free to contact us if you have any questions about a car wreck or a truck wreck case, if you are not already represented by a lawyer.

You've been in a car wreck in Alabama, you still hurt and are recovering, and now you start getting calls from the insurance adjuster for the person that hit you. What should you do?

There is nothing necessarily wrong with talking with the insurance adjuster. They are usually very nice to you, which is obviously in their best interest. Their goal is to settle the claim for what they call a "reasonable amount" or to "reasonably compensate you for your injuries." The problem is that our experience here in Birmingham and through out the state of Alabama is that insurance companies often have a far different idea of what is fair or reasonable compensation for your personal injuries than you do or than your lawyer will.

Inevitably, the adjuster will want to take a statement from you "just to document their file." We are usually reluctant to let them take a recorded statement of our clients. If it is truly just to document the file, then they shouldn't have a problem letting you take a recorded statement of their insured for their file. We have never had one take us up on this request.

In truth, they are trying to pin you down to a recorded statement in hopes that you might say something that doesn't check out or is inconsistent with something that you previously said at the scene or might later say in deposition or at trial.

If you do give a recorded statement, the adjuster will likely ask you some background questions about your medical history, employment, etc. They will then ask you questions about the car wreck, i.e., where you were going, how fast you were driving, what you saw, what happened, etc. They will usually finish by asking about your injuries. During the statement they will try to pin you down to the exact story. And be sure, they will hold you to this in the future.

If you give a statement, the adjuster is going to look very critically at your claim including your statement, the accident report and the medical bills and records to see if there is anything they can find to discount your claim. They will compare your statement to their insured's version of what happened and whatever other records they can obtain.

If you have had any preexisting back or other injuries, they will significantly discount the value of your case regardless of whether you were having no problems before the car wreck or automobile accident. If you say anything that doesn't check out with their insured's version, they will also discount your claim.

In truth, there is no advantage to them in evaluating your claim for settlement purposes in taking a recorded statement rather than just speaking with you or taking written notes. If they are pushing you to do so, we recommend you contact an attorney prior to giving a recorded statement.

We've never seen a claim settle for more money where an injured party has given a statement. In fact, we see quite the opposite. You should always remember that the insurance adjuster represents the insurance company. He or she is not your friend and does not keep their job or get raises by paying out lots of money on claims. They get these things by saving the insurance company money. If you do feel like you need to give a statement, consult an attorney before doing so.

In Alabama, like most other states, Insurance companies are required by law to offer uninsured or underinsured (also known as UM/UIM) motorists coverage. You will only not have this coverage if you opt out of it. Unfortunately, many people opt out of this coverage and don't even know it.

First of all, what is UM or UIM insurance? This is insurance coverage that will pay if you are hit by another driver who doesn't have insurance or where they don't have enough insurance to cover your injuries. You must first exhaust the other person's insurance before you can tap into your own insurance. The cost to have this type coverage is only a few dollars a month for a minimal policy of $20,000 or $25,000.

Why would someone opt out if this coverage? Most people opt out of this type coverage without even knowing they are doing so. In order to do so, you must expressly in writing agree to that you are waiving UM/UIM coverage in your policy. Typically, we see clients who, when buying auto insurance, told their agent that they wanted to cheapest policy available, not knowing that this would opt then out of this important insurance. While some good agents will explain UM/UIM coverage and why they wouldn't want to waive it, many do not. The person buying insurance is given a stack of papers to sign without explanation and many don't read through what they are signing. (To be honest, I don't know many lawyers who read all of what they are signing. The papers are very complex, single spaced, and in small print. And, if you want to purchase an insurance policy you'll have to sign.)

However, we believe it is not a good idea to waive UM/UIM to only save a few dollars a month. If you are injured through the fault of another who doesn't have insurance the results can be devastating. For example, if you were hit by someone and that caused you to be out of work for 2 months, and if you have UM, you could make a claim for lost income on your own insurance. Otherwise you would be out that money with no recourse.

We highly suggest your purchase this coverage. And, if for some reason you decide you do not want it, make sure you understand exactly what you are giving up and make sure your agent has explained it to you.