This article was written with the intent of outlining ways the personal injury plaintiff attorney could deal with the difficult insurance adjuster. It includes tips on making phone calls, inner firm organization and case management, threats of litigation, client involvement, negotiation strategies, and the use of bad faith. The point is to use all of these techniques in an attempt at getting the adjuster to offer more reasonable settlement offers.
Dealing with difficult insurance adjusters can be tough. As a personal injury plaintiff’s attorney, you’re trying to get your client’s medical bills paid off, pay the attorney’s fees, and then still have enough left to get a decent chunk of money in your client’s pocket. With certain cases, you’re not necessarily always trying to hit the jackpot; sometimes you’re just trying to get the deal done. On the other hand, you can be dealing with a difficult adjuster who doesn’t want to offer enough money to make that happen. Either the adjuster doesn’t think the liability in the case is strong enough to warrant a decent offer, or he/she doesn’t think the injury is bad enough (or even related to the accident at hand). Oftentimes it feels like there is little the plaintiff’s attorney can do little to persuade the adjuster differently. It is quite frustrating to want only to close the deal and make everybody happy but not be able to do that.
In reality though, there is a lot the plaintiff’s attorney can do to persuade the adjuster to be reasonable. Oftentimes simply picking up the phone and making a call can go a long way towards persuading the adjuster to compromise. Insurance adjusters get tons of calls from attorneys every day. They are taught to low ball these attorneys with minimal offers. Some of the attorneys (and their clients) will accept; some won’t. The attorneys who don’t accept seem to inevitably receive minimally increased offers the next time around. Some of them (and their clients) will accept this second round; some won’t. The cycle continues. Attorneys and plaintiffs who refuse to accept low ball offers appear to do better in the long run than those who capitulate too easily. So often just picking up the phone, making a call to the adjuster and reiterating the refusal to accept an unreasonable offer can help get things moving in the right direction. Adjusters are much more reasonable with attorneys who make it evident they intend perservere.
Also, many times when a new attorney takes over a case, he or she can make progress with settlement negotiations that an old attorney might not have been able to make. Just hearing a new name on the file can sometimes prompt adjusters to take a new attitude with negotiations, possibly trying to start things off on the right foot with a better offer. Sometimes things have gotten so bogged down with the previous attorney that any change can do good. Plaintiff’s attorneys who work with partners can utilize this tactic. Attorneys handling cases with settlement negotiations that have come to standstills can hand these cases to their partners or associates to try to break new ground.
Another factor plaintiff’s attorneys can try to take advantage of is the threat of litigation. Insurance adjusters do not like being sued. It does not look good to a boss or supervisor if every case an adjuster handles goes into litigation. Consequently, adjusters want to settle cases before litigation oftentimes just as badly as attorneys. Drafting a complaint and sending it to the adjuster can oftentimes work wonders for settlement negotiations. Plaintiff’s attorneys can tell adjusters that they are filing (but not serving) their complaints, all in the hope that this will spur negotiations in the right direction. If not, the complaint will be served on the adjuster’s insureds.
Also, attorneys who reassign files to their partners or associates (as recommended above) can tell adjusters that they are handing the case to a new attorney to litigate. When the new attorney first reaches out to the adjuster, he/she can tell the adjuster that he/she would like to talk settlement one more time before filing a case. This can go a long way towards encouraging difficult adjusters to be more reasonable. Again, adjusters do not want their files to go into litigation anymore than plaintiff’s attorneys do. If they believe the files are on the verge of going into litigation, they oftentimes become much more reasonable in terms of settlement negotiations.
Plaintiff’s attorneys dealing with difficult adjusters should also not ignore the power of portraying their own clients as having high expectations. Telling the adjuster that the client wants a big windfall can make the adjuster feel like he or she and the attorney are on the same team, trying to settle the case for a reasonable amount. The adjuster may feel that if he or she can give the attorney a reasonable offer, the attorney will go back and try to convince the client that the deal is in his or her best interest. Trusting that the attorney is trying to do this can, again, help make the adjuster much more reasonable in terms of offers. The adjuster may actually want to help the attorney move things along.
Plaintiff’s attorneys dealing with difficult adjusters should also not generally accept the adjuster’s offer without being fairly confident that the offer is the adjuster’s top dollar. Typically, for each case, adjusters have an allotment of money that they are working with. They have a total amount of money that they have been “given” by their boss or supervisor and told not to exceed in settlement negotiations. They can’t offer more than they have been given, but they can certainly offer the total amount that they have been given. The plaintiff’s attorney who receives an offer that is acceptable to the client should, before accepting on behalf of his/her client, typically test the adjuster to see if that offer is really the top dollar. If it isn’t, with the right maneuvering performed by the plaintiff’s attorney, the adjuster should eventually come up on the offer. On the other hand, if it is indeed the adjuster’s top dollar, this is something that should become apparent to the plaintiff’s attorney.
Knowing when the “top-dollar” has been offered is usually something that can only be learned by the experienced of dealing with many insurance adjusters, but oftentimes it is quite obvious. Sometimes, the adjuster will simply say that the offer represents the “top-dollar.” The prudent plaintiff’s attorney will then ask for a better offer. If the adjuster again reiterates that the offer really represents the “top-dollar,” the plaintiff’s attorney can either believe the adjuster and accept or ask for more. The cycle continues. At some point, the plaintiff’s attorney will have to choose to believe the adjuster and accept the deal, and typically this is just a gut call.
When not even getting an offer of “top dollar”, there is one final tactic plaintiff’s attorneys dealing with difficult adjusters can utilize. That is, plaintiff’s attorneys can pursue (or at least threaten to pursue) bad faith claims on their cases. Anytime an insurance company refuses to communicate with a claimant (or communicates, but refuses to be reasonable in negotiations), the claimant (and his or her attorney) can pursue a bad faith claim against that insurance company. Pursuing bad faith allows the plaintiff to obtain recovery up and above the policy limits on the claim. This obviously can be a boon for the plaintiff. It can, however, be just as much a bust for the insurance adjuster. No adjuster wants to be responsible for his employer being forced to pay more than the maximum amount agreed upon in the policy. The plaintiff’s attorney, therefore, needs to be willing to use the tactic of bad faith (or at least the threat of it) to spur the adjuster to reasonable negotiations.
The way to pursue a bad faith claim is to file a civil remedy notice in the Department of Financial Services in the state in which the claim is brought. The form requires the plaintiff’s attorney to specify how the insurance company acted in bad faith. A civil remedy notice can be used anytime an insurance company is involved with a case, but it seems to be most effective when used in an uninsured motorist claim against the uninsured motorist insurance carrier. In that case, the attorney preserves the plaintiff’s rights to recover damages up and above the uninsured motorist policy limits. When a civil remedy notice is filed in a bodily injury insurance case, the plaintiff is really protecting the tortfeasor’s right to recover against his/her own insurance in case he/she experiences a loss of personal assets. It’s therefore not quite as effective (since it doesn’t directly benefit the plaintiff), but it can still be effective since it affects the rights of the insurance company.
In any case, actually filing a civil remedy notice can oftentimes spur insurance adjusters to make more reasonable offers, but oftentimes just the threat of pursuing bad faith will cause adjusters to begin negotiating on better terms. If a civil remedy notice is filed, it’s required to actually be sent to the adjuster. That can certainly get things moving in the right direction. On the other hand, before doing this, the plaintiff’s attorney can simply tell the adjuster that it is his or her intent to file the notice. That can, of course, go a long way toward getting better offers as it can get the adjuster fearing the worst. Like all of the tactics mentioned above, simply mentioning the notice can go a long way towards dealing with the difficult adjuster.
