Is my insurance company investigating the accident as they should?

by Stephanie
(Gainesville, FL)

My brakes failed in August of this year and I hit another driver who was waiting for a red light. I was going 40mph and I hit the other driver's rear fender.

The driver was up and walking around and told me he was fine several times after the accident, then decided to file a claim with my insurance company for soft tissue injuries. I also saw a photo of him hiking on the top of the Appalachia Mountains and a post of same on Facebook less than two months after the accident.

My insurance company never called me to discuss the accident, or what the driver ahead of me stated at the time of the accident (which I found out is legally important). I have no idea what he submitted as proof, etc.

I can't get anyone to call me back, and one adjuster I finally got a hold of (not mine) said, "Well, you know, we have to prove he's not injured..." when I found out later the burden of proof is on the claimant. They also won't do the forensics to prove the brakes failed, which would absolve me of responsibility.

What can I do? Is the insurance company doing the best they can? Is there anything I can do to get them to investigate the accident and the other driver's "injuries"? Thanks.

Visitor Question:
Disclaimer: Information provided in our response is NOT formal legal advice. It is generic legal information based on the very limited information provided. Under no circumstances should the information in our response, or anywhere else on this site be relied upon when deciding the proper course of a legal matter. Our response does NOT create an attorney-client relationship. Always get a formal case review from a licensed attorney in your area.

ANSWER for "Is my insurance company investigating the accident as they should?":

Stephanie (Gainesville, FL):

Unfortunately, insurance companies exist in their own world. Under most types of liability insurance, the insurance company has a contractual right to settle or defend a claim as they see fit.

You normally will have an opportunity to provide input, but the insurance company has no obligation to obtain your consent or approval when settling a claim. It is arguable your insurance company had no legal obligation to forensically, or in any other manner test your brakes.

However, Florida law has a "Good Faith" statute (law) which applies to insurance companies. Under Florida Statute Section 627.727...

" (Your) insurer, in handling the defense of claims against its insured (you), has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.

For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person would."

If you believe your insurance company is acting in bad faith you have every right to file a complaint with Florida's Division of Consumer Services. Once received it is likely your complaint will be investigated by one of their investigators.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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