Negotiate With Insurance
Negotiate with Insurance (A.K.A. Dance with the 800LB Gorilla)
Your Legal Guide to Wyoming Car Accidents
Once you understand your injuries, economic harms, and the insurance available, it is time to negotiate with the insurance company’s representative, known as an insurance adjuster.
To my knowledge, every major insurance company requires their insurance adjusters to use software to evaluate motor vehicle claims. To simplify, the insurance adjuster inputs the details of the accident and medical treatment into their software program and the program outputs boundaries for settlement values. The adjusters will negotiate within (or below) the range provided by the software. This makes the process a bit like negotiating against a computer and a human at once.
In rare circumstances, an adjuster can seek to deviate from the software range. This usually requires approval from the higher-ups within the insurance company.
The first step in negotiating is to put together a demand packet for the adjuster. A demand packet presents your claim to the insurance company and should include facts to establish liability. This typically means the demand packet includes the police report, a summary of your physical injuries (which may include medical records,) and possibly statements from you and the opposing party.
It is important to present medical records appropriately. Your attorney will need to extract the medical billing codes associated with the treatment and build a timeline. It helps to extract specific records and include images and link those to the medical billing codes. You also need to document every expense associated with the treatment. This phase is not rocket science, but it can be tedious and technical, and requires meticulous attention to detail. If you overlook an expense or medical billing code, you will get a lower offer.
Once your attorney sends over the demand packet, negotiations ensue. In Wyoming, our insurance unfair claims settlement practices statute requires them to respond in a reasonable time. The courts interpret a reasonable time to be 30-45 days and that is accurate in my experience.
Negotiating with an adjuster is mix of email, voicemail, fax, and phone calls. In big cases, or after a lawsuit is filed, you might negotiate with an adjuster in person. Many of the major insurance companies use adjusters in other time zones (for example, State Farm has folks out of Georgia.)
Attorneys employ various negotiating styles when working with adjusters. Some attorneys like to make threats (and some clients like to hear their attorneys make threats) or make every issue a big fight. That is not my style and I have found that I can be most effective by being friendly and prepared. Very, very prepared. I understand that, on the other side of that phone call, there is a person trying to get through their day. I need to give that person what they need to be able to go to their boss and justify a big check. If you provide them with the right information, you will get further and hopefully get that big check too.
However, there are also insurance adjusters that are difficult or downright sadistic. These adjusters frequently claim to misplace papers, lose voicemails, and dispute medical records. I have been told my client was faking PTSD; that my notes about a previous conversation were mistaken (i.e., I lied); and that letters I sent had disappeared (only to have the adjuster quote the missing letter back to me five minutes later.) With those adjusters, the gloves come off and I tell my clients to file a lawsuit.
Throughout the negotiation or litigation process, you and your attorney will need to be mindful of existing liens and deal with them appropriately. Let’s return to the idea that your health insurance or med pay provider has a lien on the recovery. With those folks, you need to negotiate the liens at the same time as you negotiate with the adjuster. Your attorney’s job is to get as big a discount as possible on the liens to put more money in your pocket.
Some law firms have a reputation for settling every case. These firms put their clients at a disadvantage. If the insurance company knows that your attorney is afraid to go to trial, they will lowball you. They know that your attorney will not back up their threats with a lawsuit.
Alternatively, some attorneys file every case. In my experience, these attorneys usually state that “you have to file the case” to get a fair settlement, and they do not bother negotiating before filing. That always struck me as odd—afterall, it does not hurt to ask and lawsuits can get very expensive very quickly. My clients love it when we can get their cases resolved efficiently (and cost-effectively.)
Like most things in the law, deciding whether to file a lawsuit is a balance. Even if your attorney is fronting the costs, a lawsuit will take a significant amount of your time and attention. You will also be required to participate in what lawyers call “discovery,” which means the other side will be able to ask you for any information they can relate to the accident and your injuries. This information can be difficult and time-consuming to collect, and may include personal information you may not wish to share. Most people underestimate the length of a lawsuit and the frustrations that come with litigation.
All that being said, part of me loves it when negotiations break down and it is time to file the case. I always start out negotiating in good faith. By the time negotiations break down, I know either (a) the insurance company and I have a genuine difference of opinion that needs to be resolved by a jury; or (b) the insurance company hired a bunch of jerks to adjust the claim and it is time to throw down.
Both scenarios are energizing. When I file a lawsuit, I expect to win. I expect to try the case and I am invested in seeing it through. While I love carefully and profitably putting together a demand packet, I did not go to law school to write letters to insurance adjusters. I went to law school to try cases so, if we file your case, it is time to rock and roll.
I have tried over 30 cases to a jury and another 50 cases as a bench trial to the Court. With each trial, I have gained invaluable experience about how to present a case, and I am proud of my skills in the courtroom.Download the Guide