You've got witnesses to the incident that led to your injuries, and the claims adjuster wants to talk to them. What now?
In many personal injury cases, you'll have witnesses who saw what happened and who can vouch for your version of the events. What happens if the claims adjuster assigned to your case asks for your witnesses' names and contact information? Must you identify them to the insurance company? Are the witnesses required to speak to the adjuster?
Let's find out what you—and the witnesses—do (and don't) have to do.
What Kind of Insurance Claim Are You Making?
Your obligations depend, in part, on what kind of insurance claim you're making. Insurance claims fall into two groups:
- first-party claims, and
- third-party claims.
First-Party Claims
A first-party claim is one you bring against your own insurance policy. Suppose you're in a car wreck with an uninsured driver. You bring claims against your uninsured motorist (UM) coverage to get compensation for your personal injuries and against your collision coverage for the repairs to your car. Both of these claims—the UM and the collision—are examples of first-party claims.
Your insurance policy is a contract, and it imposes various obligations on you. One of those obligations is sometimes called the "duty to cooperate." When you bring a claim against your own insurance coverage, you have a duty to cooperate with the insurance company to resolve the claim.
What does this mean for our purposes? It means that you probably have a contractual obligation to disclose to the claims adjuster your witnesses' names and contact information. If you refuse to cooperate, the insurer will claim that you breached the contract. That's a fight you don't want because it's an unproductive waste of time, and it might give the insurance company an excuse not to pay or to delay paying you.
Third-Party Claims
When you bring a claim against someone else's insurance policy, that's called a third-party claim. Return to our example above. If we assume that the other driver was insured and that you're bringing a claim for compensation ("damages") against that driver's liability coverage, your claim is a third-party claim.
The important distinction here is that you don't have a contractual relationship with the insurance company. The company has a contract with its insured, the person or business against whom you're bringing a claim. That's where the insurer's loyalty lies.
So should you give the claims adjuster your witness information? While the answer depends on the circumstances, probably so. The insurance company knows—or strongly suspects—that you've got witnesses. Truth be told, the adjuster might already know who your witnesses are, and simply wants to confirm they haven't missed someone.
Consider how refusing to identify your witnesses looks from the claims adjuster's vantage point. It looks like you're trying to conceal facts, which will give rise to suspicion. If you won't identify your witnesses, do you really have witnesses? In other words, refusing to identify them undercuts the value of having witnesses. For your witnesses to matter in settlement talks, the insurance company needs to know what they have to say.
(Find out more about the personal injury case timeline.)
The Witness Usually Gets to Decide
If you've filed a personal injury lawsuit and the insurance company lawyer subpoenas your witness, the witness must show up and testify as directed. But absent that sort of court order, a witness isn't legally obligated to talk to the insurance company. When and where they talk, if they agree to talk at all, is up to the witness.
What If the Witness Doesn't Want to Talk?
Some witnesses might instruct you not to identify them to the insurance company. As long as a lawsuit hasn't been filed, you should respect that instruction. Simply tell the adjuster that the witness has asked not to be identified. The downside, of course, is that the adjuster probably won't give much weight to what the witness claims to have seen, making that witness almost useless for negotiation purposes.
(Learn more about the personal injury settlement negotiation process.)
What Can You Tell the Witness?
Keep this point in mind: Almost without exception, anything you and a witness say to each other can be discovered by the insurance company if you file a lawsuit. You can't interfere with the insurance company's right to gather evidence about the case. So, for example, you can't instruct a witness not to speak with the claims adjuster.
You're allowed to talk to witnesses about the case. The most important instruction to give any witness is this: Tell the truth, always. If asked, a witness you've spoken to about the case should tell the adjuster that the two of you have discussed it. You can tell witnesses what you believe to be the important parts of the case, and you can ask them to make certain facts clear to the adjuster.
But you can't tell a witness what to say or not say, especially when it comes to who was at fault for the accident. Depending on the circumstances, you might be tampering or interfering with a witness, and that can get you in trouble. Any witness you speak to should be able to tell the adjuster in all honesty that you haven't told them what they must (or must not) say.
The Witness Gets to Decide
Again, absent a lawsuit, a witness who agrees to speak with the insurance company has the right to control where, when, and how that contact takes place. To control the process, the witness can:
- contact the adjuster, to avoid disclosing contact information they prefer to keep private
- decline to give a written statement
- choose to be interviewed by phone or via an online meeting, instead of in person
- refuse to let the interview be recorded
- decline to sign any statement drawn up by the adjuster
- refuse to return to the scene with the adjuster or anyone else
- choose not to divulge personal information they'd prefer to be kept confidential, and
- decline requests for repeat or additional interviews with the adjuster or anyone else from the insurance company.
Ask the Adjuster About the Other Side's Witnesses
Fair is fair. If the adjuster asks you to identify your witnesses, ask the adjuster to identify the insurer's witnesses. If the adjuster refuses to discuss or identify the insurance company's witnesses, write a letter confirming the refusal. Tell the adjuster that both sides should play by the same rules, and so you must refuse to identify your witnesses.
If the adjuster denies having any witnesses, take that denial with a grain of salt, especially if the adjuster has had time to investigate your claim. Insurers do certain things very well, and one of them is investigating potential claims. Respond with a letter confirming that the insurance company denied having identified any witnesses.
(Learn about your options when personal injury settlement talks fail.)
If the adjuster identifies witnesses you didn't already know about, don't rely on the adjuster's version of what the witness says. Contact each new witness and get their story directly. You might be pleasantly surprised to learn that a witness doesn't support the other side's version of events as strongly as the adjuster claims.
Get More Help With Witnesses
There's a fine line between working with witnesses and interfering with witnesses, and you don't want to cross it. Even an innocent mistake can end up costing you. If you're not sure what you can and can't do or say, get expert legal advice. An experienced personal injury lawyer knows how to work with witnesses, and also knows when and how to identify your witnesses to the insurance company.
Here's how to find an attorney in your area who's right for you and your case.
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