Just because an insurance company agrees that its insured is responsible for causing an accident does not automatically mean that it will agree to pay all of the damages that you claim were caused by the collision. A common method for insurance companies to avoid paying a claim is to take the position that although their insured was responsible for causing the accident, the accident did not cause your claimed injuries or damages.
For instance, if the property damage to your vehicle was minimal, the insurance company will label your accident “low impact.” Within the last ten years, insurance companies have made a concerted effort to fight claims of injury in these types of accidents. Sometimes the issue arises simply by reference to the cost of the repair to the vehicle. Any collision that requires repairs to your vehicle that cost between $500 and $3,000 might be deemed a low impact collision. The insurance company may also decide your accident falls into this category if the damage looks minimal visually. Once an insurance company deems your collision to be “low impact,” it will likely dispute that you suffered anything beyond a very minor soft tissue or whiplash injury, and in some cases will dispute that you could have been hurt at all.
Say that you are hit from behind by another vehicle while stopped for a red light. There is some damage to your bumper and your neck is stiff, but you decide that it is not necessary to call an ambulance or the police department. You exchange your name, address and insurance information with the other driver and go home. Later that afternoon your neck pain increases and you develop a severe headache. You take aspirin and rest, but by the next day the pain is worse and you go see your primary care doctor. She takes some x-rays, prescribes an anti-inflammatory and a muscle relaxer and suggests that you start physical therapy if the pain continues. You undergo a course of therapy for 2-3 months that resolves 90% of your pain, but you still experience occasional stiffness and pain. The cost of repair to your car is $1,700 and your medical expenses total $3,500.
By traditional standards, the value of a claim like this is probably in the neighborhood of $10,000 to $15,000. These days, insurance companies will commonly offer you less than the medical bills to settle a claim like this. The adjuster will say that you could not be as hurt as you claim from such a small collision, despite medical research that shows even permanent injuries can occur in collisions without extensive damage to the car. But insurance companies have learned that it is cost effective to make low settlement offers to all claimants in these type of cases regardless of the specific circumstances of the collision or the individual characteristics of the person involved. By adopting a policy of “lowballing” every claim in this category, they know that many people will settle the case rather than hire an attorney to fight for what is fair.
There are other situations in which an insurance company may admit that their insured caused the collision, but will dispute that the collision caused the injury. For instance, a dispute as to causation commonly arises when you suffer an injury to your neck or back in an accident but had some prior history of neck or back pain. Say you are the middle car in a three-car chain reaction rear end collision. You have had intermittent back pain over the past ten years and have seen the doctor on a couple of occasions for medication and short courses of physical therapy. However, immediately after the collision your low back pain becomes constant, and within several days you experience pain radiating down into the buttocks, the back of your thigh and into your foot.
You have never had this type of pain before and you go to your doctor who sends you to physical therapy and orders an MRI of the lumbar spine (low back). The MRI shows a herniated disc at the L5-S1 level and other “degenerative changes” of the spine in the same area. Despite therapy, various medications, and epidural steroid injections, your pain does not improve. The pain is causing a significant interference with your ability to work, exercise, and generally enjoy life. An orthopedic surgeon offers surgery to improve the leg pain and, despite the risks, you decide it is worth the possibility of improvement. The surgery is a success and although you have some continuing back pain, the leg pain has greatly diminished. The medical expenses before the surgery are $5,000 and the cost of the surgery and rehabilitation is $75,000.
The law is clear under the so called “egg shell plaintiff” rule that if you have a condition that is aggravated by a collision that is someone else’s fault, the responsible party must pay for all of the consequences of the aggravation. Nevertheless, insurance companies have developed a routine of defending these types of claims by focusing on the prior injury. This strategy includes hiring doctors who testify the same way over and over again: that the injury sustained in the accident was due exclusively to the pre-existing condition, not the accident; that the herniated disc and “degenerative changes” were there long before the accident and were progressively getting worse as a natural part of the aging process; that the accident was only a strain or minor aggravation of these pre-existing conditions that should have resolved over a short period of time; and that you would have undergone the surgery anyway. These opinions usually conclude that maybe $3,000 of the $5,000 medical expenses incurred before the surgery was a result of the accident, but the rest of the expenses were caused by your pre-existing condition. This allows the insurance companies to claim that they are not responsible for the lions share of the pain, time off work and reduction in quality of life you experienced after the collision.
This is part of the tort reform era approach to claims handling explained more fully in Chapter 3. The insurance companies have been successful with these arguments in some cases. However, the best trial attorneys know how to present the medical evidence supporting causation and can overcome these types of insurance company defenses to obtain fair settlements or jury verdicts.
