Insurance defense lawyers have less than a month to produce surveillance of auto accident victims – not when it’s convenient for them
There is a big problem in Michigan with insurance companies abusing discovery, and nowhere is this prevalent than with video surveillance.
The notion of insurance companies “ignoring the rules” may sound strange to people – that is, until they’ve been injured in an automobile accident.
Video surveillance is not just being utilized by auto insurance companies in increasingly aggressive efforts to deny No Fault PIP benefits to people injured in car accidents, but also the defense lawyers who hire investigators to “find anything” in lawsuits.
The problem is mainly that this video surveillance is not being done as a basis for not paying No Fault insurance benefits. It becomes a problem when insurance company claims adjusters have been asleep at the switch, causing enormous hardship for people for months by choosing to just ignore their claims entirely. The victims of this bad faith have little legal recourse, other than to hire a lawyer and file a lawsuit, and even then, it can take many months before the insurance company adjuster looks at the file.
The problem is that aggressive video surveillance is being done after the fact, months or years later, and then used to try to justify a long pattern of malfeasance and willful ignorance.
Many insurance companies will attempt to use video surveillance to “catch” an injured party doing something that they say that they can’t. And then, if they catch them just once, months or years later, using this as a basis for justifying the nonpayment of all the medical bills and wage loss that have piled up.
What’s important for Michigan personal injury attorneys to understand is that any type of surveillance is discovery, and the rules on legal discovery are very clear. The law says attorneys must produce discovery within 28 days of request.
That is meant to avoid trial by ambush and “Rambo” litigation tactics that serve only to consume resources and clog the courts with unnecessary discovery abuse. It is meant to inform each side of the strengths and weaknesses of a case so surprise is minimized, and disputes can be resolved more efficiently.
The rules are crystal clear and, to date, there is no case which stands for the proposition that surveillance does not fall under legal discovery. However, it’s becoming more and more common for insurance defense lawyers to object and say that they will not produce surveillance until after a plaintiff’s deposition, or at all if there is an impending trial date. They argue that they should have the right to surprise a person.
Without an attorney who understands the rules, these defense lawyers often get away it.
For example, without a proper and timely discovery request, the insurance company may get a deposition without having to produce any discovery. I never let my clients’ depositions occur without having answers to interrogatories, and I always file a motion against this common tactic by insurance defense lawyers.
And I win – because I have the Michigan Court Rules on my side. The defense lawyer is essentially asking the court to break the rules.
I’ve been arguing over this exact issue with State Farm for two months now.
The trial court stated in a recent order that I was correct: State Farm had to produce discovery within the 28 day time limit. During that point in the lawsuit, State Farm had to produce the discovery request within five days – which was three weeks before my client’s deposition – or they would be barred from using it.
This is important, because surveillance only becomes admissible if a client is dishonest about his limitations.
More importantly, without aggressive representation, State Farm may have gotten away with producing mandatory legal discovery at their convenience, not when they were required to by law.
This helps limit insurance fraud and insurance abuse. It means people injured in car accidents who are waiting for their No Fault benefits – or or a surgery, or who are in danger of losing their house because their claims adjuster is just choosing to ignore them and not pay wage loss – will be treated more fairly now and in the future.
– This blog post was written by attorney Joshua Terebelo
