The adjuster is the biggest witness for both the Plaintiff and the Defendant in a lawsuit to recover outstanding No-Fault PIP Benefits. When taking the discovery deposition of the claims adjuster, you want to gather all of the information possible in regard to the adjuster’s handling of your client’s claims file. You want to verify each bill the adjuster received, the date it was received, whether it was paid, and if it wasn’t paid, you want to know the specific reason the adjuster has as to why.
You can, and should, use this information not just in preparation for trial, but in preparation for case evaluation, facilitation, settlement negotiations, and motions for attorney fees, penalty interest and costs.
And taking the video deposition of the claims adjuster is an important part to all of this.
Let’s face it, most claims adjusters do not want to give you information. Most of the insurance lawyers who are defending the case are prepping the adjuster before your deposition to tell you as little as possible. Adjusters do not want to tell you why a bill wasn’t paid, or why they handled your client’s claim the way they did. And adjusters certainly do not want to tell you why they dropped the ball, and why they cut-off your client without reason.
PIP files make trying to hide information easy, and a lot of good injury lawyers get frustrated trying to take an experienced claims adjusters deposition. Adjusters can do a good job of hiding behind the PIP file. PIP Files can be very voluminous. In deposition, when you ask a question, they repeat over and over that they need to refer back to the PIP file to find that information. The hope, of course, is that you will move on, rather than wait for them to find the answer. This is one of the biggest games adjusters play. It is how seasoned adjusters tend to avoid very legitimate questions that you need answered to establish your client’s case.
When depositions are taken via video deposition, adjusters cannot do that easily.
Adjusters tend to come more prepared to video depositions. They know there is a chance that a jury may be watching this one day.
Also by Michigan Court Rule, lawyers are only allowed a reasonable amount of time for a deposition. When an adjuster delays, taking ten minutes to search through the claims file or longer to each question, the hours will pass quickly and a judge may not grant a motion for continuation. But with a video deposition, you can really show a judge in a motion for continuation just how much time the adjuster spent looking through the claims file and how little time was actually spent answering your questions.
A recent example of this occurred on one of my no fault cases, when on a very large PIP file, the adjuster did not come prepared for the deposition and basically took 10 minutes reviewing the PIP file before each answer. It was obvious that the adjuster was doing this solely because she hoped that her stalling and delaying tactics would cause me to become annoyed and impatient, and end the deposition. Does make me wonder how many times this has worked for her in the past with other lawyers? But because the deposition was videotaped, the defense lawyer contacted me shortly after to inquire about settlement. Seems the insurance defense lawyer had the same thoughts I had – a jury one day will be equally as annoyed and impatient watching this video one day, only that would be directed at her client.
Video also stops discovery abuse. When the insurance defense attorney tries to improperly coach or suggest answers, or tries to cancel the deposition right in the middle of the heart of an attendant care claim and then file a motion to prevent further questioning, video helps prevent and stop this type of abuse. In one such case, a defense motion was denied and the judge specifically stated that it was obvious depositions should not be defended this way. Based upon defense lawyers abrupt termination of the deposition of the claims adjuster, the judge has also taken costs under advisement.
In our world, many insurance attorneys ignore that they are not supposed to make speaking objections. Too often, these lawyers make speaking objections so they can explain how they want their adjuster to answer the question, and then the adjuster does it. This type of abuse is not allowed under the Court Rules. However, these same attorneys are far less likely to make speaking objections that coach their client when their voice is heard. Video is an effective tactic that ensures that you get the information you need while meeting the least amount of resistance.
Finally, video shows you are ready for trial. Sadly, too many personal injury plaintiff lawyers struggle to fund cases. Many insurance and injury lawyers do not have the financial resources to take cases to trial. Videotaping sends a message, and it shows the adjuster that you’re ready, willing, and have the financial resources for trial.
Joshua R. Terebelo works in the law firm’s litigation division, where he focuses on No-Fault insurance lawsuits and helps auto accident victims receive their first-party personal injury protection (PIP) benefits.