How a property owner's insurance coverage will affect an insurance claim or lawsuit over a slip and fall.
You've been invited to a party at a neighbor's house on a dark, frozen winter night. While making your way up the walkway to the front door, you suddenly lose your footing and take a hard fall onto your low back. Two days later, your family doctor tells you that you've injured your lumbar spine. By the time you've reached what's known as "maximum medical improvement" (MMI), you're out of pocket $4,500 for medical bills, therapy visits, and medications.
Is this accident covered by your neighbor's homeowners' insurance? If your neighbor is insured, the answer is probably yes, at least in part. But, in order to receive compensation from the insurance company, you'll need to know how to make a slip-and-fall claim.
Does the Homeowner Have Homeowners' Insurance?
The first question you must ask is whether the homeowner has homeowners' insurance. Most do. If the home is mortgaged then it is almost certainly insured, because mortgage companies require it. But if the property is mortgage-free, it's possible that the homeowner doesn't have insurance.
Unfortunately, there's no such thing as a "homeowners' insurance registry" that you can check. The only way to find out if the homeowner has coverage is to ask, or to make a claim for your injuries and see if the homeowner turns the claim over to an insurance company.
If the homeowner doesn't have insurance, then you'll need to make your claim directly to the homeowner. You'll also need to make a claim to the homeowner if there is insurance, but the policy limit is too low to cover all your damages.
What Kind of Insurance Coverage Is Available?
The typical homeowners' insurance policy has two kinds of coverage that may apply to a slip and fall claim: medical payments coverage (sometimes called "med pay") and liability coverage. Let's explore each in a bit more detail.
Medical Payments Coverage (Med Pay)
As the name suggests, medical payments coverage is available to pay the medical bills of a person who is injured on the property. Most insurers include some limited med pay coverage as part of a homeowners' policy, but the amount of coverage is typically quite small—$2,000 to $5,000 per individual. Homeowners can purchase additional coverage, but many don't.
The good news is that med pay coverage is a kind of "no fault" insurance, meaning that you don't have to prove that the homeowner was negligent in order to collect. If you can prove that you were hurt on the property, med pay coverage will reimburse you for your medical bills up to the coverage limit.
Collecting medical payments coverage is simple. Just send your medical bills to the insurance adjuster assigned to your claim, and the insurer will reimburse you—again, up to the limit of coverage.
Liability Coverage
If your medical bills are more than the limit of med pay coverage, or if you want to recover for other damages like lost wages or pain and suffering, then you must bring a claim against the homeowner's liability coverage. A homeowner is only liable for your slip and fall—meaning that their insurance policy will cover you—if the homeowner was negligent and that negligence was partially or totally responsible for your injuries.
The fact that you fell on someone's property doesn't mean that the property owner was negligent. You must prove that you fell because of some unsafe condition on the property, and that the owner knew or reasonably should have known of the unsafe condition.
To return to our hypothetical facts above, if you slipped because there was a patch of ice on your neighbor's walkway that was difficult or impossible to see in the dark, your neighbor might have been negligent by failing to remove the ice or failing to warn you of the icy condition.
Be aware that your state could have different or additional rules that provide your hypothetical neighbor with defenses to liability. For instance, in many states, if the homeowner can prove that the unsafe condition was "open and obvious" to anyone paying attention, your negligence claim might fail.
If you have questions about your state law, you should contact an attorney who handles premises liability cases. (As covered below, you might want a lawyer for other reasons, too.)
What Are the Steps to Bring a Slip and Fall Claim?
The steps we describe below are specific to cases where the homeowner has an insurance policy and is willing to give you the insurer's name. But the homeowner might be reluctant to give you this information. Why?
Some insurers will cancel a homeowners' policy, or significantly raise premiums, if even one claim is made under the policy. For this reason, some homeowners refuse to report claims to their insurer, and will try to handle claims themselves.
Document Your Fall and What Caused It
If you're injured in a slip and fall, then your first priority should be getting the medical care you need. But once you're able, you should do what you can to document what happened, and how it happened. Try to follow these steps:
- Talk to others who were there to see if they encountered the same unsafe condition.
- If you're able to get photos of the location under the same or similar circumstances, you should do that.
- Make notes as soon after your fall as possible, to record what you saw, what you didn't see, and how the fall happened.
- Make notes about what anyone who was there said after you fell.
- Keep detailed notes about your injuries, any limitations you've experienced, and the medical care you've received.
Report Your Claim as Soon as Possible
Report your claim to the homeowners' insurer as soon as possible. You should make this report in writing, via certified mail with a return receipt requested to prove delivery. Keep it short and factual: identify the homeowner, the address, and the date you were injured, and provide a brief description of your injuries. Don't offer any more detail than necessary.
You might not have finished all medical treatment if you're reporting your claim soon after the incident. If you have, say that you will follow with a settlement demand as soon as possible.
If you're still receiving treatment, tell the insurer that you will follow up once your treating doctor tells you that you've reached MMI. Tell the insurer that you will seek recovery under "all available coverages." Finally, let the insurer know that at this point, you are not willing to give any kind of additional written or recorded statement.
How Do I Deal With Insurance Adjusters?
Once you report your claim to the insurer, the company will assign an insurance adjuster to the case. The adjuster will contact you and the homeowner to get the facts surrounding your fall.
The adjuster's overarching goal is to take control of the case and dictate the terms on which you move forward. You don't want that to happen. Remember that you retain control over your claim, at least until the point when you file a lawsuit (if the case doesn't settle before that point).
The adjuster will ask you to give a recorded statement about what happened. If you don't have a lawyer, you should not give a recorded statement. Be prepared: The adjuster won't want to take "no" for an answer, and will try all sorts of tactics to get you to give in. Despite what the adjuster might say in order to convince you, almost nothing good ever happens to unrepresented personal injury claimants who give recorded statements to insurance adjusters.
At this point, your goal is to settle the case without filing a lawsuit. If the case doesn't settle and you decide to go to court, the insurer will have a chance to get your recorded statement—called a "deposition"—as part of the suit.
The adjuster will want to get your medical records and bills as your medical treatment progresses, and will also want documentation supporting any lost earnings you might claim. You'll be asked to sign releases to allow the insurance company to get this information.
At this point, you should not sign any records releases. Tell the adjuster that you will provide all the relevant records, bills, and other documentation with your settlement demand (discussed in the next section).
This answer will make the adjuster unhappy. The adjuster will tell you that the insurer needs your records and bills now to begin evaluating your case for settlement. Again, the adjuster wants to take control of your case. Don't let that happen.
Prepare a Settlement Demand Letter
Once you've reached MMI (or if you're not at MMI but you're concerned about the statute of limitations on your claim), you'll need to prepare a settlement demand letter. As the name suggests, this is a letter that describes your fall, how you were injured, and your damages.
You'll want to attach copies of your medical records and bills, letters from employers documenting lost wages, and any other proof of your injuries and damages. In the letter you should demand payment for your "economic" damages (medical bills, lost wages, and other items that are easy to quantify in dollars) and your "noneconomic" damages (things like pain and suffering that can be trickier to reduce to dollars).
Ideally, your demand letter will start a negotiation between you and the insurer. Your initial demand should be for something more than the lowest figure you're willing to accept in settlement, so you can negotiate a resolution.
If the case doesn't settle at this point, then you'll need to decide whether you want to file a lawsuit. Be wary of the statute of limitations on your claim. If you fail to file your lawsuit before the statute runs out, your claim is probably lost forever.
Get Help With Your Claim
If the case gets to this point, you should give serious thought to hiring an attorney who is experienced in handling premises liability—or slip and fall—claims. Especially if you have serious injuries, it's often a good idea to bring on a lawyer even before this point. But once you file suit, you're playing by the court's rules. Those are rules that are very familiar to the insurer and its attorneys; if you're unrepresented, you're at a huge disadvantage.
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