It is important to understand the importance of recorded statements in personal injury claims if you have been involved in a motor vehicle accident in North Carolina. A recorded statement is essentially an interview conducted and recorded by the insurance company’s adjuster or representative. The goal of an insurance adjuster when creating a recorded statement is to gather as much information as possible about you and what you believe to have occurred so that the insurance company can evaluate the accident or personal injury claim.
While adjusters for the insurance companies are often friendly and cordial, it is essential to understand that the true goal or intent behind the record statement is for the insurance company to gain information that may be used in investigating, limiting or denying your personal injury claim for damages.
Note: The insurance adjuster is working to investigate and determine whether the insurance company can justify refusing to pay you money for your injuries, if possible.
It is all too common for personal injury lawyers and their websites to attempt to vilify insurance companies and their practices, including the practice of pursuing recorded statements. However, recorded statements can be helpful in certain circumstances. While the situations in which a recorded statement may be helpful are limited, each personal injury case is different. Please ensure that you have a complete and thorough understanding of the facts and circumstances in your case before you heed any advice that simply states that you should “never give a recorded statement in a liability case.”
Why Do Insurance Adjuster Ask For a Recorded Statement?
While there are many reasons why an insurance adjuster may want a recorded statement, there are only a few reasons why they would not. In most circumstances, an adjuster will not request a recorded statement in cases of clear liability, meaning that the facts and law are clear as to who is at fault in the accident.
Clear liability or “clear-cut” liability cases are somewhat less common than cases with contested or disputed liability, especially considering North Carolina’s rule of contributory negligence. As such, if an insurance adjuster can make an argument that you were even one percent at-fault for the accident, they will work toward establishing this argument and attempt to avoid compensating you for your injuries.
You will likely receive a request for a recorded statement if the adjuster believes that you may be contributory negligent or believes that they may be able talk you into saying something that suggests that you were contributorily negligent. It is for this reason that most personal injury lawyers advise accident victims against providing recorded statements unless required by law.
Should you find yourself in a position where you are giving a recorded statement, it is important to listen to each of the questions carefully and answer only the question that has been asked. Try to avoid giving answers or information to questions that were not asked. You should have little doubt that the answers you provide will be used by the insurance company to limit or deny your claim for damages, if possible.
Additionally, it is important to understand that your recorded statement will be reviewed in conjunction with the police reports, witness statements, insurance investigator reports and recorded statements provided by other individuals involved in the accident. The goal for any insurance adjuster is to evaluate the recorded statement with a critical eye and to seek inconsistent and inaccurate information.
Should you be unfortunate enough to have the insurance adjuster discover or decide that something is inconsistent or inaccurate with any other information or reports that they have at their disposal, your claim may be denied outright. If your claim is denied, or if the insurance company determines that you were contributorily negligent, you may have no other recourse other than to file a lawsuit. As such, the consequences of giving a bad recorded statement significantly outweigh the benefits of giving a good recorded statement. Therefore, if you receive a call from the insurance company looking for a recorded statement, it is advisable to reconsider your decision to agree.
NOTE: Please be mindful that if you are presenting a claim for Underinsured (UIM) or Uninsured (UM) Motorist Coverage, you are required by most insurance policies to provide an Examination Under Oath (EUO). For more information about these types of claims, please visit our UM/UIM section.
How Do Recorded Statements Start?
All recorded statements occur because the adjuster either calls and schedules a time to talk or the adjuster calls and asks if they can record the call to assist them with their investigation. These two methods can be broken down into two categories: (1) scheduled recorded statements and (2) sudden recorded statements.
The facts are clear that most personal injury lawyers would advise against doing a recorded statement. However, possibly all personal injury lawyers would agree that if you do decide to do a recorded statement, it is important to spend time preparing for what you will likely be asked to explain. As such, it would be beneficial to refuse any request for a sudden recorded statement, considering that you likely have not taken the time to review the dates, street names and details of the accident.
While there is no doubt that you recall most of the information related to the accident, it is important to ensure that you are practiced in answering only the question that has been asked and feel comfortable telling the adjuster that you desire only to discuss those matters that are directly related to the mechanics of the accident.
What Will the Adjuster Ask About in the Recorded Statement?
The bad news about recorded statements is that they can hurt your claim if you say something wrong. The good news is that most insurance adjusters read from a script, and their questions are predictable. (link to SCRIPT).
The design of most recorded statements is to begin by asking you basic information about who you are and where you live. These questions are helpful to the insurance company for two very different reasons. The first is that demographic questions make people feel at ease and may cause you to lower your guard. The second reason is more sinister, as it allows the insurance company to confirm your name, address, gender, date of birth and even your Social Security number so that a background check may be run on you.
After the adjuster has concluded the basic introductory questions, the adjuster will typically ask several open-ended questions to get you talking about what happened. These questions are specifically designed to ensure that you keep talking and hopefully say something hurtful to your case. Examples of open-ended questions that have hurt client’s cases are: “Tell me a little about what you were doing before the accident happened,” or, “So, where were you coming from before the accident happened?” While there are thousands of possible questions, the purpose of an open-ended question is to get you talking. While these may seem like innocent questions, the adjuster is trying to find ways to show you were at fault or contributed to the mechanics of the accident.
Finally, the adjuster will likely try to gather information related to your medical history, accident history, medical treatment, health insurance and information related to any witnesses to the accident during the recorded statement. These questions are possibly the most dangerous to your case, as a single wrong or inaccurate response could ensure that the insurance company denies your claim.
If the adjuster asks you a question about your medical treatment, respond by stating, “My treatment is ongoing, and I would prefer that my medical records be evaluated to determine how severe my injuries are. I am not qualified to state with any kind of specificity the severity of my injuries, and I believe my medical records will be more precise than I could be at this time.”
How to Effectively Limit the Scope of a Recorded Statement
If you have decided to give a recorded statement, please be sure to understand that you can instruct the adjuster that you would prefer that the conversation focuses on the issue of liability, and as such you will not be answering any questions unrelated to the mechanics of the accident. If the adjuster begins to ask questions about any other topic, you can politely inform them during the recorded statement that they agreed to only ask questions about how the accident happened and that you do not think answering questions about your medical treatment is a good idea until the treatment is complete. After all, your medical bills and records are the best source of your medical damages.
Reasons to Not Give a Recorded Statement
It is common for insurance adjusters to tell individuals that they are unable to determine liability and will therefore deny coverage unless a recorded statement is given. This is typically a ploy or tactic used to convince you to give a recorded statement.
Most individuals fail to realize that the information that adjuster needs to determine liability has most likely already been gathered and the decision regarding liability has been made before the recorded statement is even scheduled. However, insurance adjusters will seek to secure a recorded statement of the accident victim for the purpose of protecting the insurance company in the event that the accident victim files a lawsuit.
Please be sure to remember that lawyers and insurance adjusters use a variety of documents and information for various sources to evaluate a personal injury case. For instance, accident reports, witness statements, traffic patterns and signals, cameras, and even damage to the vehicles can all be used to assess the facts and circumstances in a personal injury claim. Additionally, the insurance adjuster will likely already have a copy of the accident report in hand and will most certainly be receiving the medical records for their files. As such, it is typically a good idea to deny making a recorded statement politely but firmly. For more information regarding what you will be asked and how to answer the adjuster’s questions, see what not to say in a recorded statement.
How to Request a Copy of Your Recorded Statement
If you have given a recorded statement, it is important to know exactly what you said. While recorded statements are often considered by insurance adjusters and their lawyers to be documents prepared by the insurance company in preparing for litigation, most insurance adjusters will provide you a transcript of your conversation upon your request. In the event that the insurance company refuses to provide you a copy, your only recourse may be the discovery process during litigation.
To request a copy of your recorded statement from the insurance adjuster, it may be a good idea to do so in writing. Please be sure to include necessary information such as where you would like the transcript sent, your personal information, as well as the claim number. For a sample letter requesting the recorded statement from the responsible insurance company, visit our Recorded Statement Forms and Document section (link).
It is common for the insurance adjuster to refuse to provide you with any other party’s or witness’s recorded statement. The insurance company views documents and recorded statements as documents prepared in anticipation of litigation and as such believes that such documents are not discoverable.
In general, documents created in anticipation of litigation are considered “work product,” or “trial preparation” materials and are protected. Willis v. Duke Power, 291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976). However it is worth noting that materials, documents or even recordings “prepared in the ordinary course of business are not protected,” and are so not considered materials “prepared under circumstances in which a reasonable person might anticipate a possibility of litigation.” Willis, 291 N.C. at 35, 229 S.E.2d at 201.
If you plan to give a recorded statement, it is a good idea to consider recording the conversation or simply instructing the adjuster that you will not provide a recorded statement unless they agree in writing to provide you a written transcript of the recorded statement in a timely manner. If the adjuster refuses to agree to provide you a copy of the transcript, you should be sure to record the conversation yourself.
Finally, in the event that the adjuster has refused to provide you the transcripts of the witness’s recorded statement, consider contacting the witnesses and politely requesting your own recorded statement. Here is a list of common questions asked by the insurance company for you to conduct your own recorded statement interview.