Rear-ended another party

by Brandon
(San Diego)

I was responsible for a rear end accident which I believe to be a minor fender-bender. My insurance company estimated the damages to my Tundra as minimal, and damage to the Volvo sedan did not appear to be great at the time of the incident. Both of our vehicles have the plastic bumpers. When I asked the other party if they were alright (immediately after the accident), they mentioned "only a little whiplash" (oh great).

All has been truthfully relayed to my insurance company, however I have been told that the other party has retained an attorney for injuries, that the other insurance company has already paid out nearly $2500 in repairs, and my adjuster is still reviewing the claim (completely understandable). When do I need to begin looking for an attorney of my own?

Also, some articles I have read indicated that correspondence between my representatives and the other parties involved should be made available to me (to confirm they are negotiating in "good faith"), however I was told this information is proprietary and not available to me. Is this correct?

Thank you,

Answer

Hello, we are sorry to learn you are in this situation. You have two different questions and we will answer both here.
When do I need to begin looking for an attorney of my own? Your insurance company will appoint one to you once it is necessary (when there is an actual lawsuit). Your insurance company has the right to say which attorney since they will be paying him/her. Most of the attorneys insurance companies hire are very good and aggressive so you are covered. This process, believe or not, is very common. Many people will try to take advantage of the situation by making whiplash injury where one should not exist. Some other people are legitimately injured.

In either scenario, your insurance company has a duty to protect you and settle the claim with in your policy limits. Not settling within policy limits is evidence of bad faith. If the insurance company believes or has an indication that the injury could be more than your limits, they need to inform you. They still would have to give you a lawyer to represent YOU, not them.


It sounds like your accident was “minor” per the damages. However, remember that the “egg shell” or thin skull plaintiff doctrine applies. This means that if the person you hit was already injured or had bad health, then the insurance company would have to pay to put that person in the position they were before the impact, even if a “normal” person would not have been that injured.

As far as getting a lawyer to protect you, make sure the insurance company is settling the case within policy limits and you personally will be ok. However, you can monitor how much is this person wanting and how much is the insurance company be willing to pay. Do not worry about the other company getting a lawyer yet, it happens all the time and insurance adjusters are well trained to deal with the situation.

Your second question is “correspondence between my representatives and the other parties involved should be made available to me (to confirm they are negotiating in "good faith"), however I was told this information is proprietary and not available to me. Is this correct?”

No, it is not! Insurance companies are very protective of their files, mainly because it all can come back in a “bad faith” lawsuit. They will tell you that this is their information and belongs to them. They will also tell you that it is considered “work product” and therefore it is protected. This is all untrue.

The insurance company has a duty to protect you because your personal interests are at stake here (i.e. you can get suit). They must be clear and they have what is considered a “fiduciary duty” to you. A fiduciary duty is the duty the law considers are the finest and upmost loyalty. They insurance company must put your interest before theirs. Note, some jurisdiction consider the relationship between the insurance company and the insured as fiduciary and others define it very close to what we just said.

Here is where insurance adjusters are mistaken. Work Product is a rule of evidence. It is true that work product could be protected from an adverse party. So the claim file can be completely shield against an adverse party. You are not an adverse party (you are both in the same team) . They are not protected by this rule. Believe us, all the file would have to be handed to an attorney, including inter office communications and adjuster-supervisor reports. The only time that the adjuster’s file is protected is once you file a “bad faith” claim, at that point you become an adverse party. Other than that they must surrender the documents.

The problem again is that 1. Adjusters are trained incorrectly (we believe intentionally by the insurance company) so they do not release documents to you. They will tell you that it is the law. Ask the what law and have them put it on writing! 2. By the time you get them to release the information, you have to have an attorney on your site, which you do not want to do unless you know there is bad faith.

If they are telling that this is property information, ask them to put it on writing and request an special explanation. If they put it on writing, that letter could be worth taking to an attorney.

We are not sure if we were able to answer your question.

Good Luck,

Casey and Hector.