Sun | Apr 5, 2020

Cedric Stephens | Negotiating personal-injury claims

Published:Sunday | December 8, 2019 | 12:27 AM

QUESTION: I am seeking your advice about filing an insurance claim. I was a passenger in a friend’s vehicle. Another car failed to stop at an intersection and caused a collision. Its front end was badly damaged, and the airbag was deployed. My two knees and one of my arms were injured. I also have muscle spasms in my neck, lower back pains, and tingling in my feet. The two vehicles are covered by the same insurer. The company asked me to submit a claim. I have no idea how to do so or what to claim for. The medical report on my knees is ­outstanding. They are still hurting.

– T.H., Kingston

 

INSURANCE HELPLINE: Many thoughts entered my mind after I read your email and our quick telephone conversation while you were waiting to see the doctor. They were, in no particular order: the regulator’s market conduct guidelines on how claimants like you should be treated; a recent newspaper report about the disbarment of an attorney who was retained to handle a personal-injury claim; and ­previous articles that I wrote in which advice was offered to injured persons in motor vehicle accidents. I will use this group of ideas to frame my response in the hope that they will guide your actions.

One of my articles titled ‘Personal injury and consumer vulnerability’ was published in this newspaper on October 29, 2017 – jamaica-gleaner.com/article/business/20171029/cedric-stephens-personal-injury-and-consumer-vulnerability. Read it very carefully.

The accident has hurt you physically and emotionally. You are still in the process of recovering from the shock. While you are in this state, you are exposed to the possibility of further harm. You are in a vulnerable position.

In my opinion, you are not in a state of mind to prepare, submit, and negotiate a personal-injury claim with an insurance company. In this condition, you are likely to end up in a situation with the insurer holding the handle and you the blade.

The Association of the British Insurers ABI is the United Kingdom’s insurance industry lobby group. Its local equivalent is the Insurance Association of Jamaica (IAJ). Nearly 10 years ago, the ABI introduced a code of best practices for its members to adopt in aiding third-party claimants like you.

The introduction to the code sets out “the procedures to be adopted by an insurer when they provide, or offer to provide, assistance directly to a person who has had an accident with the insurer’s policyholder and may be entitled to a compensation payment for personal injury”. Road traffic accidents are among the group of accidents to which the code applies. IAJ members do not have a similar set of rules.

One rule in the UK code says: “The claimant should be informed of his/her right to seek independent legal advice … to help resolve the claim.” Because you did mention retaining the services of an attorney in your email or during our brief conversation, I have concluded that the insurance company representative who asked you to submit a claim did not consider that it was in your interest to seek a lawyer’s assistance.

That employee, in my judgment, erred by his failure to do so. This is because his company insured both vehicles and was, therefore, facing a conflict of interest.

The Financial Services Commission’s February 2019 Revised Market Conduct Guidelines provide some general rules about how insurers should handle conflicts of interest. However, they are of little help in defining those three words.

Fortunately, there is the Cambridge Dictionary. A conflict of interest, it says, is “a situation in which someone (or a ­representative acting on behalf of a company) ­cannot make a fair decision because they (or the company they represent) will be affected by the result”.

In your case, because the insurer covers both vehicles, it is likely to be incentivised to settle your claim for a lower amount, especially if you were not represented by an experienced attorney. Bear in mind also the lack of transparency in how insurance company claims staff are paid.

This newspaper reported last month that a well-known attorney was struck from the roll of lawyers authorised to practise in Jamaica over claims that he under-reported the award to a woman he ­represented in a lawsuit by $9 million.

“He is the seventh lawyer struck from the roll of attorneys this year, representing a record number of disbarments for a calendar year in the last decade. Six attorneys were disbarred in 2017 and five last year.”

The takeaway: As with everything else, one must be very careful who one chooses to provide legal representation.

After you have retained the services of a competent personal-injury attorney, my guess is that they will, in cooperation with members of your medical team, decide when it will be most appropriate to file a claim against the insurers of the negligent driver. You have six years in which to make a claim. This is not ­unreasonable. Your injuries could take a long time to heal. There is no reason to hurry to settle your claim.

 

Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to: aegis@flowja.com