Auto insurers play hardball in minor-crash claims

If you are injured in a minor car crash, chances are good that you will be in the fight of your life to get the insurance company to pay all the medical costs you incur — even if the accident was no fault of your own. That is the finding from an 18 month investigation conducted by CNN on so-called minor-impact soft-tissue injury crashes around the country. Those are accidents in which there is little damage to the vehicle and the injuries to people are not easy to see by the naked eye or conventional medical tools like X-rays.

According to documents obtained by CNN, the strategy was developed in the mid-1990s with the assistance of consulting giant McKinsey & Co. Looking for a way to boost profits, McKinsey focused on soft-tissue injuries incurred in minor crashes. Playing off Allstate’s signature slogan, one document recommends the insurer put boxing gloves on its “good hands” for those who insist on going to court. The McKinsey work was the subject of a May 2006 BusinessWeek article. Entitled In Tough Hands at Allstate, the article highlights a new book by plaintiff’s lawyer David Berardinelli of Sante Fe, New Mexico. In the book, From Good Hands to Boxing Gloves, Berardinelli tells the story of the key role played by management consultant McKinsey & Co. in reengineering auto insurance claims operations at Allstate Corp. — and it’s a story Allstate doesn’t want told.

The strategy, according to former Allstate and State Farm employee Jim Mathis, relies on the three D’s — denying a claim, delaying settlement of the claim and defending against the claim in court.

The premise underlying the three D defense is seriously flawed. That is, it is widely acknowledged in medical practice, that a person’s injuries are not correlated to the amount of damage to their vehicle.

The amount of damage sustained by the car bears little relationship to the force applied. To take an extreme example: If the car was stuck in concrete, the damage sustained might be very great but the occupants would not be injured because the car could not move forward, whereas, on ice, the damage to the car could be slight but the injuries sustained might be severe because of the rapid acceleration permitted.

MacNabb, I., “Acceleration Extension Injuries of the Cervical Spine,” Journal Bone/Joint Surgery, 46:A 1797-1799 (1964). In light of the fact that the scientific literature has stated there is no connection between property damage and extent of injuries, it is improper for insurers use photographs of property damage to argue that there is a connection, knowing the opposite to be true.

Because much of the science and literature surrounding the determination of injuries in low-impact collisions has only been around a few years, courts around the country are just now wrestling with the issues presented by misleading and unsupported property damage evidence. Many courts that have addressed this issue have found that such evidence is not admissible when it is not accompanied by supporting expert testimony to establish an adequate foundation. For example:

Davis v. Maute, 770 A.2d 36 (Del. 2001) (reversible error to admit evidence of property damage and allow counsel to argue serious injuries could not have resulted from a minor collision);

Hastie v. Dohar, 2002 Ohio App. LEXIS 808 (Ohio Ct. App. B 8th Dist. 2002) (finding trial court’s action proper in excluding photographs of property damage as well as argument correlating property damage and injury);

Sloan v. Clemmons, 2001 Del. Super. LEXIS 535 (Del. Super. 2001) (court excluded evidence of amount and extent of property damage, any evidence or argument correlating damage to injury, any evidence regarding force of impact or speed at impact, but allowed testimony of mechanisms of injury by expert witnesses);

Hovis v. Hughes, 2001 Del. Super. LEXIS 534 (Del. Super. 2001) (excluding evidence of property damage but allowing expert testimony about force of impact causing injuries);

The Davis court correctly found:

As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such testimony, any inference by the jury that minimal damage to the Plaintiff’s car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation.

Davis, 770 A.2d at 42.

Until more courts come down on the three D’s, consumers will continue to be victimized in auto crashes.

Will my next vehicle be a plug in hybrid?

I just finished watching Who Killed the Electric Car, a film that Daily Variety called a contender for the Oscars along with An Inconvenient Truth. It got me wondering whether my next vehicle would contain a traditional internal combustion engine.

Narrated by Martin Sheen, this acclaimed exposé chronicles the life and mysterious death of the GM EV1. It’s a whodunnit about cars, the people who love them, the companies that build them and fuel them up, the governments that regulate them, and the fight for our future. Amid ever-increasing gas prices, this documentary delves into the short life of the GM EV1 electric car — once all the rage in the mid-1990s and now fallen by the roadside. How could such an efficient, green-friendly vehicle fail to transform our garages and skies? Through interviews with government officials, former GM employees and concerned celebs, Chris Paine (former EV1 owner) seeks to answer the question.

It raises some interesting issues and is sure to generate heated discussions at the holiday dinner tables. You can get more information on the film and efforts to push electric vehicles by clicking here. You can read Director Chris Paine’s Blog and find out about the challenges of making a documentary that the oil companies and automakers don’t want you to see.

Study says phones and driving don’t mix

At the University of Utah, psychologist David Strayer, a leading expert on cell-distracted driving, has been studying the effects of cell phone use on driving. His conclusion is that the data proves that phones and driving don’t mix. Strayer and his colleagues have shown that deep involvement in a cell conversation typically impairs drivers more than being legally drunk.

The work is being conducted at the Applied Cognition Laboratory, Department of Psychology, University of Utah. According to the project website:

The long-term objective or the research is to understand the impact of using advanced in-car technologies on driving performance and traffic safety. The research addresses three specific goals limited to the most prominent communication technology, the cellular phone. First, we provide unambiguous scientific evidence demonstrating that cell phone conversations disrupt driving performance. Second, we compare and contrast the increased risk associated with cell phone use relative to other real-world activities. Finally, we provide a theoretical account for why cell phone use disrupts driving performance.

To view more information about the study, click here.