Power and Your Insurance Claim
Miley Legal Group
There are thousands of web sites out there with tips on how to negotiate your insurance claim. Some of the ones I have reviewed even seem to contain solid information on the psychology of negotiation. If you really think about it, however, negotiations only really work when both sides have something the other wants and the leverage to produce the desired result. You could be the greatest negotiator in the world, but you will lose every time if you have no leverage – no power to move the other side.
In a world where money equates to power, you can be certain that insurance companies have a lot of it. State Farm, the company that writes the most policies in West Virginia, has total assets of $138,798,000,000.00 (that’s billions if you lost track of the commas and zeros). Nationwide’s 2014 annual report boasts total assets of $195,200,000,000.00 (again, billions). Allstate’s 2014 annual report indicates total assets of $108,533,000,000.00.
My point is this – if you or I think that shrewd negotiating skills or the ability to say the right thing at the right moment will appreciably move an insurance company, we are seriously fooling ourselves. Moreover, if we are counting on an insurance company’s innate sense of fairness or other issues of morality to provide a just result, we are even more foolish.
Insurance corporations, being the profit-seeking entities that they are, use their staggering resources to control every facet of the claims process and they will attempt to dictate, within a very narrow range, the value of each and every claim. Do you need a surgery on the shoulder that you injured in the wreck? The value of that claim was decided in a boardroom long before you were hurt by individuals having only a profit motive. Nothing about the personal impact on your life was taken into account and if you think your injury claim is worth more, too bad.
Is there anything at all that can level out this imbalance between you and the insurance company? As a matter of fact, the very clever individuals who founded our nation and our State knew of this problem and they tried to do something about it. The 7th Amendment to the United States Constitution says:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
The Constitution of the State of West Virginia contains a nearly identical provision in Article III, Section XIII and also states that “The courts of this state shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.” Article III, Section XVII.
This access to the civil justice system, guaranteed by our founding fathers, is the only way to level the playing field. The ability to have our peers, people who care about what happens in their community, hear the facts and decide the value of your losses, rather than having them decided by suits in an insurance boardroom, is a simple but precious gift that separates us from most of the rest of the world. In America, if you take advantage of this gift, you will stand in the courtroom on the same level as any other litigant, regardless of their wealth or power. The mere existence of the civil justice system, the possibility and sometimes the reality of real people deciding the value of claims, is the only thing that keeps billion dollar insurance companies in check. Most important to the subject of this article, it is the only thing that provides you with any leverage to get a fair value for your claim.
The sad truth is that most folks do not realize that the right to a jury trial in a civil case is guaranteed by our State and Federal Constitutions. Thus, unlike the justifiably strong reactions to attacks on the 2nd Amendment, we do almost nothing to protect the 7th Amendment. In fact, many folks have been convinced to feel that it is embarrassing, immoral or even sacrilegious to consult with an attorney about a civil case. The insurance industry has spent millions fostering those sorts of attitudes because it saves them a lot of money – most people take what the insurance company is offering and walk away. On the other hand, if you want the power to get a fair value for your claim, consult with a trial attorney and keep an open mind about your constitutional rights.