Negotiation Techniques in Slip and Fall Accident Claims...



Part 3: Sample Dialogue with Claims Adjuster

There are a variety of negotiation techniques used by personal injury attorneys when handling slip and fall settlements. You can use these same techniques in your own injury claim. This page gives a sample dialogue between a claims adjuster and injured party. The "Notes" section explains important negotiation techniques and strategies used by both parties.

The following dialogue between the adjuster and an injured party (Susan Silverstein), demonstrates the typical negotiation process for a slip and fall accident claim. Obviously this dialogue will not match your circumstances exactly. Use it more as a guideline of how a typical slip and fall case negotiation will work.

The most effective personal injury negotiations are those in which the injured party is able to turn the tables on the adjuster and have him answer questions rather than ask them. Going on the offensive is important. Controlling the dialogue makes sure its focus remains on you and your claim.

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Let's continue with our previous example and assume you have bills the adjuster won't pay. There are thousands of dollars in dispute and you don't want to end up paying.

The disputed bills consist of three extra days you remained in the hospital, two additional sets of X-rays and an additional MRI. The claims adjuster said there was no medical reason for the additional X-rays or MRI. He also said the additional three days in the hospital were not medically necessary.

It's highly unlikely the adjuster has an MD, OD, or PhD after his name. So how does he know what's medically necessary and what's not?

Insurance adjusters, especially those with the authority to pay claims of thousands of dollars, are well trained in negotiation techniques. There are some who negotiate basic slip and falls and car accident cases, and others who negotiate multi-million dollar plane crashes.

Each adjuster goes through an extensive training program before he or she is given authority to negotiate claims. In addition to their training they have ready access to volumes of reference material where they can research all types of injuries, from broken coccyx bones to soft tissue injuries to skull fractures.

They also have access to medical personnel, including physicians, nurse practitioners, and registered nurses. By the time the adjuster picks up the telephone to call you he has already studied your file and is prepared to negotiate your claim from a position of strength.

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Sample Dialogue with Negotiation Techniques for Settling "Hard Costs"...

ADJUSTER: "I've already paid the hard costs for this claim. What I have not paid are the three additional days the doctor kept you in the hospital, a second MRI, and set of X-rays - all unnecessary. We can't just pay bills without justification. I don't see any justification for paying these additional costs."

INJURED: "Please take a look at my hospital chart and refer to Dr. Smith's entry on January 3rd. After looking at the first MRI and CAT scan he and the radiologist were only able to see one fracture in my coccyx bone. When I continued to complain of pain they decided to order an additional MRI and CAT scan. That's when they found it. Whether you think they were necessary or not doesn't matter. If they had not been done they would not have located an additional fracture on the underside of the bone. It's not my fault they didn't catch it the first time."

"I stayed in the hospital longer because my husband is going to have to be home to care for me for the next few weeks while my coccyx bone and elbow continue to heal. You know I am right handed, and my right arm and elbow are still in a cast."

"My husband is taking a leave of absence from work to spend two weeks at home with me. He is going to help the children with their meals, their homework, and get them to bed. At the same time he will be caring for me. I don't know why my doctor suggested I stay in the hospital those extra days, but he approved it, and because he did, it remains a valid cost."

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ADJUSTER: "What if every doctor in every slip and fall claim told his patient she could stay in the hospital three medically unnecessary days, or four, or five? You can't expect us to pay the additional millions of dollars that would cost us. I can't do it."

INJURED: "Fine, well then I think it only fair then that we add two weeks of my husband's lost wages. If it wasn't for your insured's negligence I wouldn't even be on the telephone with you, and I wouldn't be confined to my home sitting on a "donut" cushion to ease the pain and discomfort in my back. If that is how you want to deal with this then I don't think we have much more to discuss."

Notes: The implication of hiring an attorney is okay at this point.

ADJUSTER: "You know we will not under any circumstances pay for your husband's lost wages. That is a personal decision between the both of you, and one in which we will not become involved."

INJURED: "And you have also declined to pay for the second MRI and additional set of X-rays. Why is that?"

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ADJUSTER: "Our medical department says the doctor should have caught the second fracture of the coccyx in the first MRI. And the first set of X-rays should have done the same. If we start paying for additional tests just because of doctors' misdiagnoses, we will be subsidizing less than standard care. We are not in business to subsidize misdiagnosed MRI's and X-rays."

INJURED: "No sir. Whether there was a misdiagnosis or not, I didn't request the additional tests. I was in excruciating pain after the first MRI and set of X-rays. The doctors couldn't understand why. It was good medical practice for them to go back again to look for anything they may have missed the first time. If they had not, my pain would have continued indefinitely."

"Regardless of your opinion of necessity, I was not responsible for the actions of my physicians. I am then not responsible for the cost of the extra tests. If you believe the doctor is, then fine, pay me and subrogate (sue) against him."

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ADJUSTER: (Next Day) "I have talked this over with my supervisor. We are prepared to make this offer. We will agree to pay for the additional MRI and X-rays, but we will only agree to pay for one extra day of hospitalization."

Notes:Whether you like it or not this is a negotiation. Negotiations are inherently unfair. Usually neither party is happy with the results. Don't expect to win every point of a negotiation. Compromising is necessary when settling personal injury claims.

INJURED: "Alright then. We have an agreement on the Hard Costs. Thank you."

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Sample Dialogue with Negotiation Techniques for Settling "Pain and Suffering" Compensation...

ADJUSTER: "You know, before we get started I have to tell you our insured seriously considered fighting this claim."

Note: This negotiation technique is often used by adjusters. They attempt to make the injured feel it would be them against the company and that the case is so weak the insured "seriously considered fighting it."

ADJUSTER: "You know the bottle of olive oil was only eight ounces. We have statements from people at the scene who said the broken glass was in plain sight and the olive oil was all over that area of the aisle and was clearly visible. They said they saw it and were very cautious as they walked by. Our witnesses said anybody could have seen it and avoided falling."

Notes: This is another frequently used negotiation technique by adjusters. He is already trying to minimize the claim and direct attention away from the negligence of his insured and onto you.

In doing so he wonders aloud, "If other customers were all able to avoid the spill, why weren't you? And the spill couldn't have been very large because the bottle was only eight ounces, and most if it was still in the bottle."

And then he does something only seasoned adjusters can get away with – ever so slightly wondering aloud if your intentions in filing this claim were less than admirable (possibly including perpetrating a fraud to collect money, or as the government prosecutors call it, Insurance Fraud).

The adjuster knows there are over a thousand staged injuries and subsequent slip and fall claims filed each year in this country (about 25% went awry and the schemer was injured much more severely than he or she had intended).

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ADJUSTER: "Across the country our insured averages about five thousand personal injury lawsuits filed against it each year. They deny most claims and fight them in court, winning almost ninety percent. You and I have spoken recently. I've convinced them you're a reasonable person and that you understand the amount we usually settle these claims for is about what the hard costs are. With that understanding and because we have already paid all of your hard costs, it doesn't seem like we have a lot to talk about."

Notes: Insurance adjusters are notorious for making these kinds of "preemptory strikes" against the victims, especially when there are only soft tissue injuries.

Soft tissue injuries refer to injuries where there was no scarring, no apparent disk or spine damage, and no bones were broken. These injuries, although painful, are limited to sprains, strains and muscle aches, not much past the skin, fatty tissue, and muscle.

Because slip and fall cases are often soft tissue injuries, insurance companies can be very hesitant to pay anything more than the hard costs, if that.

In this scenario though, your injuries are very serious. You passed "soft tissue" injury the second you fell and broke bones in your body. You slipped and fell in a store while walking down one of their aisles. Because you were pushing a cart you were unable to see a pool of almost transparent olive oil which spilled out of a broken olive oil bottle.

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ADJUSTER: "I've reviewed this case thoroughly. The manager of the store told me the spill was quite small and clearly visible. There were many customers who walked right by it without slipping or falling. The stock boy who was supposed to clean up the spill was just getting off shift and another stock boy was heading right over to clean up the spill. You know I went over there and saw the scene for myself."

Notes: That's almost certainly true. You can be sure the adjuster already went out to the store, and probably conducted a "test" having some oil spilled in a similar place. They are usually very thorough.

INJURED: "Then if you're not going to negotiate compensation for my pain and suffering we have nothing more to speak about."

Notes: An important negotiation technique is to be patient and persistent. Staying calm and not allowing yourself and your emotions to be manipulated by the adjuster has accomplished three important things:

1. Where other victims might have let their emotions cloud their thought process, yours has remained crystal clear.

2. You've let the adjuster know you are one victim that's not going to be easily intimidated or manipulated into accepting a token amount for pain and suffering.

3. This is a claim which will not fade away. He is going to have to negotiate with you because your attitude and behavior indicate you are either going to settle this claim fairly or you will not hesitate to call off negotiations and retain an attorney - something the adjuster does not want you to do.

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ADJUSTER: "I'm not saying we're not going to compensate you for some inconvenience the fall may have caused. But I do have witnesses who said the spill was easily seen by other customers and they safely walked around it."

INJURED: "It doesn't matter to me if you can produce one hundred witness to tell me how small the oil spill was or that I could have seen it. My point is that:

A. The manager knew about the spill.

B. The manager never followed up.

C. Whether there was one milliliter of oil or a tank full of it, it shouldn't have been there and because it was there I was seriously injured."

INJURED: "I don't think you understand what I went through. The pain from my back radiated like a raging fire going through my entire body. The pain from my fractured elbow was excruciating. I lay there in pain so terrible I began to sob. Although people were crowded around trying to help me, every time someone touched me I cried out in pain."

"Because I was in meetings all day I was dressed in one of my finest business suits. As I lay there seemingly forever, I began to notice a very strange wet feeling crawling up my legs and back. Then I realized I was suffering the additional indignity of olive oil oozing up my body."

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ADJUSTER: "I have no doubt of the extent of your injuries, but you're asking us to pay you pain and suffering in an amount seven times hard costs. You know I can't do that."

INJURED: "I laid in the hospital for two weeks and three days. The whole time I had to be elevated above my bed because when my coccyx bone touched the bed it was like someone was repeatedly sticking hot knives into my back. I am right handed so I had to be fed by the nurses the entire time I was in the hospital. I remained confined to my bed at home for another two weeks following my discharge from the hospital."

ADJUSTER: "Your demand is for seven times your hard costs. I can tell you with one hundred percent certainty we will not pay that, nor will we pay six times."

Notes: When negotiating adjusters do not usually use the terms "four times" hard costs, or something similar. Instead they deal in actual numbers. For this example dialogue it will be easier to use the method of "four times," etc.)

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INJURED: "I have only a general idea of what the future medical and related bills will be. I'm still in physical therapy and am awaiting additional surgery on my elbow. My husband has been a tremendous help. You are not going to pay his lost wages but in all fairness you should. He's had to sleep in the guest bedroom since I arrived home from the hospital. I have missed his strength.

Notes: This is known as "Loss of Consortium" and is a damage that you can demand compensation for.

ADJUSTER: "I now have authority to pay you $XX,XXX. (three times costs). I don't think I can get any more authority than."

INJURED: What is your maximum authority and maximum offer?

ADJUSTER: "My best offer is three times hard costs."

Notes: Adjusters are usually very adept at using settlement terminology. You should keep an eye out for this negotiation technique. Here he said his "best" offer is three times costs. To the untrained ear that may sound like his ultimatum, thereby prompting many to go ahead and settle. You know better.

When he says it's his "final offer" you will know that's as far as he can go. The next step is the legal department. But until that time, you have nothing to lose by continuing to negotiate.

You have to decide now whether to accept three times your hard costs, or continue to push him to raise his offer a bit. But keep in mind that his "best" offer may quickly become his "final" offer.

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INJURED: "I've discussed your offer with my husband. Either you don't know or care about what I went through, and what I will continue to have to deal with for years to come. The last thing I want to do after all this time is retain an attorney, but I can not in good faith accept any amount less than four times costs."

Notes: At this point the injured has to make a hard decision. If you truly feel you can't live with the amount already on the table (three times hard costs), you'll need the fortitude to bluff by saying that four times hard costs is your final offer. Once said, if the adjuster comes back and says "No" you will have lost all your negotiating strength.

It's then too late to say, "Well what I really meant was three times." The minute you say that all your credibility will be gone. Even if the adjuster was thinking of coming back at you one more time with an offer a little higher than three times, as soon as he heard you say, "Well now I'll take three times," he knew he just won the negotiation.

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When negotiating with an adjuster you're dealing with someone who does this for a living, it's his job to settle claims. The faster you can reach an agreement, the better it will be for him (you can be sure he has a bunch more sitting on his desk).

You CAN negotiate a fair settlement for your injuries... the adjuster is ready and willing to negotiate. The better prepared you are, the better chance you will have to negotiate professionally.

Preparation and professionalism command respect from an adjuster and will go a long way toward a substantial settlement.

The adjuster would much rather deal with an injured party who is thoroughly prepared for the negotiation, even if that party is demanding a settlement of monumental proportions.

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Now you know how to use some valuable negotiation techniques to help increase your personal injury settlement. Remember, being organized will do more to aide your negotiations than almost any other factor.

If you want to learn more about how to negotiate a settlement, read a few pages on Negotiation Strategy.

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