Insurance Companies: A Personal Injury Lawyer's Opinion

With 15 years of experience in personal injury cases, I have some strong opinions about insurance companies. Most of my experience has been with car accidents, so I'll focus on that but some of the companies also cover homeowners or other types of insurance. And my opinions will center on how the companies are toward their customers, not towards plaintiffs or plaintiff attorneys.

First of all, I worked for Allstate in the late 1990s. At the time I generally had a good feeling about the company. They were tough on weak plaintiff cases but generally fair on severe injuries. As an in-house lawyer, I worked closely with the claim reps and claims managers - the Allstate staff who investigated claims and made the decisions about whether to pay and if so how much. They had a lot of experience and knowledge and were just good people. I didn't always agree with them but they had reasons for their decisions.

Their work environment was in transition. In the good old days, they'd go out into the field, like to the scene of the accident. But when I got there Allstate was changing things on them, chaining them to their computers and reducing their ability to get their hands on the meat of the cases. This helped them handle a higher volume (thus saving money) but it reduced quality. It also made the job less pleasant and accelerated retirement. That further reduced quality by removing the best staff. Some of the newer reps were good, but still didn't have the same level of experience.

Allstate was, and is, facing pressure from the newer low-cost insurers like Geico and Progressive. On the other end was the longstanding competition from State Farm, which had better numbers in customer retention.

Allstate and State Farm are so large that they're under constant pressure to keep their existing customers and bring in new ones to replace the ones they lose, while keeping costs down. I think those pressures make it very difficult to provide the best service and be fair to their customers.

At the bottom of my list is Geico. In my experience they are too aggressive on cutting costs. I've seen them refuse to pay medical bills for their customers that obviously should be paid (and I've heard complaints from doctors about Progressive doing the same). One property damage claim stands out in my mind. Our client had Geico and was hit by a State Farm driver. Her car was totaled. Geico told her that her car was worth $5000. I checked with State Farm first, and they offered our client $6500. So maybe Geico saves 15% on the price, but they screwed our client for 30% when it came time to pay a claim.

I've also seen Geico refuse to pay plaintiff claims in a way that puts the Geico customer in jeopardy. When you cause an accident and the person is really hurt, your insurance company's job is to protect you. The worst example is the case we had where our client suffered an amputation after being hit by a Geico-insured driver. We asked for the $25K policy and they refused to pay - on an amputation! In the end we went to trial and the Geico customer faced a judgment of millions of dollars filed against him - when Geico had a chance to settle the case for $25K.

I never saw an amputation when I was at Allstate. They were smart enough to pay a claim like that before anyone had to sue.

It can make sense for an insurance company to refuse to pay a claim, or even for them to hold off on settling because they're investigating something. But when all the facts are in, it's time to settle. Even though I like State Farm, they failed in this one on that same case where they were good on the property damage. Their customer was clearly at fault and our client had to undergo two shoulder surgeries. And there we were, a week before trial and they still hadn't offered a penny. This wasted everyone's time and money, and put their customer in jeopardy.

During my time I've seen that some insurers are just better all around. Good examples are Travelers, Hartford, Nationwide, and Amica (our insurance company). These companies seem to work with their customers very well, and in particular they don't do frivolous denials. I remember when we chose Amica. I was reading insurance industry numbers that showed Amica's "complaint ratio" was dramatically lower than State Farm and Allstate. I can't say they're perfect, but we've been happy with them.

One of the underlying lessons is simple: You get what you pay for. If someone's advertising that their product or service is cheap, then it probably is. I'm not a cheap lawyer and I'm happy about it. We lose some potential clients who are looking for the cheapest lawyer they can find. We do the job right and provide good service. That's what I want to do for my clients, and that's what I want my insurance company to do for me.

One other thing - don't be cheap yourself. Make sure you have enough coverage. It's rare but I've seen cases where wealthy people didn't have enough insurance. That can dramatically change your financial circumstances and even drive you into bankruptcy. Getting $100K in coverage doesn't cost that much. And an umbrella policy (usually covering up to $1 million) isn't much more. If you're not sure, go through an agent. They'll help you make the right choice.

Marana Municipal Court, Jared Lee Loughner and Diversion

Reports indicate that Jared Loughner's case in Marana Municipal Court was resolved through a diversion program. There's no link on the Court's official website about diversion, but it is just northwest of Tucson, and the city of Tucson's site has more about their own diversion program: Tucson Diversion Program.

In my last post about Loughner, I mentioned a concern that drug court diversion programs here in New York focus on substance abuse and may fail to address larger mental health concerns. For the Tucson program at least, this might be true. From that site:

"Participants cited with substance abuse charges attend substance abuse counseling."

And reinforcing that:

"You will be evaluated for the need and type of counseling appropriate to your offense."

In the mental health community, counseling is chosen appropriate to your mental health needs. In the so-called criminal justice system, counseling is chosen appropriate to the offense.

How about this quote:

"Treatment or education to deter offenders from committing further criminal acts."

Since when is treatment or counseling designed to deter?

I also like this quote:

"The Prosecutor’s Office determines eligibility on a case-by-case basis."

Because prosecutors, you see, are the most qualified to determine who needs mental health treatment. Okay, sarcasm off.

I have to give credit to the New York State Legislature for our new Judicial Diversion statute (Article 216 of the CPL). They took that power away from prosecutors and required a mental health evaluation upon request from the defense. In New York, "Drug Court" is available only on the prosecutor's consent. But a judge can order diversion over the prosecutor's objection.

Hopefully, the fact that Loughner's diversion failed to address his obvious mental health problems will lead these programs, and our courts, to a broader focus.

Update: A writer on Huffington Post also mentioned diversion about Loughner and the Columbine shooters.

Jared Loughner, Mental Health and the Criminal Justice System

I just read an article in the Arizona Daily Star about Jared Loughner, the Tucson shooter.

The article indicates that Loughner completed "diversion programs" after minor criminal charges. This is just another example of how our so-called criminal justice system fails to deal with mental health problems.

We have a relevant case pending right now. We applied for the new Judicial Diversion program for drug felonies in New York. The normal approach is that the Court orders an evaluation.

We like to go a step ahead of that, and apparently a step beyond. Before seeking diversion we have our client get a thorough mental health evaluation from a trusted professional. The psychologist we send people to is a respected professor. He does a complete evaluation and provides us with a detailed report, addressing the total mental health picture as well as the specific legal questions we ask him.

In our pending case, the Court did not accept our psychologist's report as sufficient and ordered an evaluation from the court's own staff. I have that evaluation. While I agree with its ultimate conclusion (that our client should be admitted to the diversion program), I find the overall quality of the report disturbing.

The evaluator is a social worker with far less education and training than a psychologist. He filled out a boilerplate questionnaire with very short handwritten answers - rarely full sentences and often one word. There was no discussion, no analysis of our client, his life, the incident that led to his arrest, etc.

Relevant to Jared Loughner, what stands out is that the court evaluation only addressed the substance use/abuse issues and did not address other mental health concerns. Our psychologist identified a number of other DSM-IV diagnostic codes, and the major concern was not substance abuse but rather a severe form of a fairly common mental health problem. According to our psychologist this is the underlying cause of most of our client's other problems (including the recently developed substance abuse, a collapse in school grades and family issues).

Did that happen with Loughner in Tucson? Did the diversion programs ignore other mental health problems and address only substance abuse? I'm not sure if we'll ever know, but I know it happens here.

Mental health problems are one of the biggest causes of crime. We see it a lot in our DWI cases and petit larceny (shoplifting) too. The criminal justice system should pay more attention to overall mental health problems. Let's hope the Jared Loughner story pushes in that direction.

DWI: A Problem With Plea Bargaining Policies

As a criminal defense lawyer sometimes we get cases where we have pretty good but not overwhelming evidence that our client is innocent.

In some counties, I contact the prosecutor and explain the evidence. Sensible prosecutors will agree to a deal where my client pleads guilty to a lesser offense that's better than the original charge. Yes ideally it would be dismissed but this compromise tends to make everyone happy.

Then there are counties where the District Attorneys have strict plea bargaining policies.

An example is a recent DWI case where we had great evidence. Police documents indicated our client may not have been driving (something they have to prove beyond a reasonable doubt). On video, one of the cops said he was surprised the breath test result was so high because our client seemed sober. And he looked and sounded completely sober. This took place in a county where the DWI has a strict policy on plea bargaining for DWI cases. Due to policy, the only offer was for our client to plead to the charge (link is to a previous post about such policies).

A reduction to DWAI would have been reasonable and my client would have accepted it. I'd prefer a dismissal or a better deal of course, but it would have been reasonable.

Since that was not possible, we did not discuss the evidence with the DA. We simply prepared for trial. When trial came, the flaws suddenly became apparent and the case was dismissed.

The policy led to a lot of waste. My client spent a lot of time and money. The judge and court staff wasted time. So did the prosecutors. If they made deals on cases like this, they'd have more time for the stronger and more important cases. This is a DA's office that has blown some big ones.

Perhaps the worst, about 30 prospective jurors sat in court for hours.

I appreciate the concern about drunk drivers. Through my work I've seen the harm more than most. But the punitive approach is wrong, especially with defendants who have clean records. The focus should be getting drunk drivers off the road and into treatment. Plea bargaining accomplishes that.

Bar Exam and Real World Experience

Okay, so I'm studying for the Florida Bar Exam. I am encountering one problem repeatedly. I think I'll get past it, but it's a little funny so I'll share ...

Here's a sample question from the review course:
Bob is showing off his new gun to Ted. Thinking there are no bullets in the gun, Bob reenacts a scene from his favorite movie – points the gun at Ted and pulls the trigger, hitting and killing Ted. With what crimes can Ted Bob be convicted? Please evaluate fully, including any and all defenses that may apply.

The sample partial answer deals with First Degree Murder, and concludes that Bob cannot be convicted because he did not intend to kill him (because he thought there were no bullets in the gun).

Okay, maybe in the fantasy land of law school and/or bar exams that might be the case. But in the real world of criminal lawyers, the key word here is "can," not "should":

1. Simple - The jury can infer intent from the facts. Bob pointed the gun at Ted. He pulled the trigger. There was a bullet in the gun and it hit and killed Ted.

Yes in the abstract we know Bob thought there were no bullets in the gun. But how does the jury know that? Because Bob says so? Right. How many defendants would be acquitted if that was persuasive to a jury?

2. Detailed - Police came to the trailer park and took Bob down to the police station. Strangely they didn't believe Bob thought there were no bullets in the gun. After 7 hours of interrogation without an attorney (Bob didn't think he needed one because it was just an accident), Bob said he was sorry and admitted that he was mad because Ted ate the last french fry and he wanted to get back at him. Also, Bob's jail roommate gets extra good time credit by testifying at trial that Bob admitted he did it on purpose.

In other words, Bob can be convicted of First Degree Murder because the criminal justice system is not always about justice.

I'll do my best to stick to the fantasy answer, but maybe I'll slip in the real world answer at the end ("It should be noted that in the real world ...").