Should You Give a Recorded Statement to the Other Driver's Insurer?

Published October 13, 2010 · Injury Law Basics

Within a day or two of a crash, the phone rings. A friendly voice from the other driver's insurance company says she is "just getting the facts," that she wants to get your claim "moving," and that the next step is a quick recorded statement over the phone. It will only take a few minutes. She may even suggest that nothing can happen on the claim until you give one.

Short answer: no. You do not have to give the other driver's insurer a recorded statement, and in a case involving real injuries you should not do it without talking to a lawyer first. Here is why the adjuster is asking, what she is going to do with it, and what you can do instead.

You have no obligation to the other driver's insurer

Start with the basic point that adjusters never volunteer. You have no contract with the other driver's insurance company. You did not buy a policy from them. They owe you nothing except, eventually, fair payment of a valid claim, and you owe them nothing at all, including your time on a recorded line.

The adjuster's job is to pay you as little as possible. That is not an insult to adjusters; it is the job description. Every dollar not paid on your claim is a dollar the company keeps. A recorded statement is one of the cheapest tools the company has for lowering what it pays, which is why it is requested so early and so persistently.

What the adjuster is really listening for

An experienced adjuster conducting a recorded statement is not gathering facts in any neutral sense. She is building a file for a specific purpose. The things she wants on tape:

• A low description of your injuries. "How are you feeling today?" sounds like courtesy. If you answer "oh, I'm okay," that phrase will be quoted back to you in every negotiation. Two days after a crash, before the disc injury or the concussion has fully declared itself, most honest people minimize. As I explained in my post on seeing a doctor after a crash, adrenaline and shock hide injuries. The statement locks in the hidden version.
• Any admission of fault. "I guess I could have seen him sooner." "I might have been going a little fast." "I'm not sure if the light had changed." Each of these becomes a percentage under Ohio's comparative negligence rule, and each percentage comes off the top of your recovery.
• Inconsistencies. You will give another account to your doctor, perhaps another in a deposition. Human memory is imperfect, and details shift. Any variation between the recorded statement and later accounts is presented as evidence that you are not telling the truth.
• Prior injuries and conditions. "Have you ever had back problems before?" If the answer is yes, the adjuster will argue that your current pain is the old problem, not the crash.
• Activities. Questions about work, hobbies, and what you have done since the crash are aimed at later arguing that you were not as limited as you claim.

None of this is dishonest in the adjuster's eyes. It is simply an interview conducted by a trained professional with a goal, given to an untrained person with no preparation, who has just been through a traumatic event and is probably on pain medication. The outcome is predictable.

"We can't process the claim without it"

You will hear some version of this. It is not true. The other driver's insurer can evaluate liability from the police report, the vehicle damage, the witnesses, and its own insured's account. It can evaluate your injuries from your medical records when you or your lawyer provide them. The recorded statement is a convenience for the insurer and a risk for you, and a claim can be resolved, or tried, without one.

What the insurer may do if you decline is slow down. That is a negotiating tactic. It is also a reason to have a lawyer, because an insurer that stalls a represented claimant knows the next step is a lawsuit.

Your own insurance company is different

There is one important distinction. Your own auto policy almost certainly contains a cooperation clause, which requires you to assist your own insurer in investigating a claim. If you are making a claim under your own medical-payments, collision, or uninsured or underinsured motorist coverage, you may be required to give your own company a statement, and refusing can jeopardize that coverage.

Even then, two cautions apply. First, in a UM or UIM claim your own insurer stands in the at-fault driver's shoes and has the same incentive to minimize your injuries, so the statement should be prepared for and, ideally, attended by your lawyer. Second, the cooperation clause does not require you to give a statement the day after the crash, before you have seen a doctor or spoken with counsel. Reasonable scheduling is cooperation.

What to do instead

When the other driver's adjuster calls:

1. Be polite and brief. Confirm your name and that you were involved in the crash. You do not need to be rude; you simply need to decline.
2. Decline the recorded statement. "I'm not going to give a recorded statement right now. I'll have my attorney contact you." That ends the conversation.
3. Do not discuss your injuries. Not even to say you are fine.
4. Do not sign anything. Early in a claim, adjusters sometimes send a medical-records authorization that lets the insurer pull your entire medical history, not just crash-related records. Do not sign it.
5. Write down the adjuster's name, company, claim number, and phone number, and give them to your lawyer.

Once we are involved, the insurer gets the facts it legitimately needs, in writing, from our office. Liability facts come from the crash report and the investigation. Injury facts come from your medical records, provided in an organized package when treatment has progressed far enough to show what you are actually dealing with. The insurer loses nothing it is entitled to. You lose the risk of a bad answer on a bad day.

What this means for you

The first two weeks after a crash are when claims are won or lost, and the recorded statement is the most common way an injured person loses ground without knowing it. You have the legal right to decline. You also have the right to a free consultation before you make any decision about the claim at all, and that consultation should come before the statement, not after.