Brian

Really. News to me.

froze

Note I said "usually"; in my case with Allstate, Allstate was being stupid; I told them there was no need for lawyers (remember I said I don't believe in lawsuits), just pay for the bike and my medical bills which was limited since the dislocation was only partial. My wife was involved in a minor not at fault accident with no injury and 20th Century (now 21st Century) insurance called her to get the details and then sent $3,000 for injuries (plus they repaired our car to the tune of $500) even though there was no injuries and no lawyers. Depends on the insurance companies policy and the claim rep as to how the situation will be handled.

unkchunk

Expatriot, if he accepts the 60% offer for damages to his bicycle and cashes the check, does that mean he agrees to the 60/40 senario and could be held to pay for 40% of the SUV's damages later on?

froze

Yes, if the isnurance company wants to be a snot about it they could come after him for the 40% since he would be agreeing that it was 40% his fault. It appears the insurance company are being snots so I would get a lawyer and quite playing with them!!!

DCCommuter

It's a state-by-state thing, different states have different "theories of negligence." Here is an article written by a lawyer that explains it: https://www.mwl-law.com/chart.htm

Basically, in some states you have to be 100% at fault to be liable. In other states, your liability is equal to your portion of the fault. In some of those states, you can't be liable if you are less than 50% (or 51%) at fault.

Texas is "Modified Comparative Fault -- 51 Percent Bar" which means that you can't be held liable if you are less than 51% at fault, so in this case there is no liability to the cyclist of being found 40% at fault.

budster

To return to the OP's original point -- that AIG is behaving badly here, and therefore we should consider getting our insurance from some other company -- is there any reason to believe that any other insurance company is better, or would have handled this differently?

As for the "other" question -- advice -- I'd suggest following Expatriate's advice, because his inside knowledge here is extensive.

The insurance company has based their assertion on two points:

1. The OP didn't have a light
2. The OP failed to take evasive action

Disproving the first point, that he didn't have a light, is fairly straightforward. It's not quite as simple as many seem to think, because if you read his post carefully, the police report doesn't say that he had a light, it just doesn't mention that he didn't have a light. Maybe it "stands to reason" that if he hadn't had a light the officer would have mentioned it in his report, but that absence of mention is not conclusive proof. Best would be a signed statment from the officer that he (OP) had a light. Next best would be a signed statement from the OP's riding partner. I'm assuming the SUV driver wouldn't cooperate, but if she would, her signed statement that OP had a light should also do nicely. Too bad there are no photos from the crash site.

The second point is trickier. As Expat says, the facts are critical. If she pulled out right in front of him, what evasive action could he have taken? There were only two possible evasive actions: go to the right of (behind) the SUV, or to the left (in front). Was there a curb, ditch or other obstruction on the right? If so, evasive action to the right would have been impossible. Was there other traffic on the road? Regardless, trying to evade by going left, in front of the SUV, would obviously not have been a reasonable action. What if she had started moving forward again? And if there was other traffic, going left would have also put him in danger from the other traffic. Finally, the distances and speed are vital facts. How far in front of him was she when she stopped? 20 mph is about 30 feet per second. If she pulled out 30 feet ahead of him, he would have had about 1 second to react. That's not time enough to stop, nor is it time enough to decide what, if any evasive action to attempt. But if she had kept moving, it would have been enough time (just barely) for him to squeeze by (behind) her.

Anyway, Anthony, I hope you win.

I'm not sure if you're right about AIG being particularly bad, but I will certainly keep my eyes open and consider other options.

My opinion of insurance companies is very similar to my opinion of the police: I don't hate them -- in fact, when I need them I'm glad they're there -- but I always feel better when I don't have to deal with them at all.

Slow Train

I have to agree with most of Expat's advice here to which I'll add some of my own spin.

** Disclaimer - I work for a large US auto insurance but as a programmer. In that capacity I work daily with business analysts who all have come up from the line. So I know something (second hand) of how claims are "worked". **

When a claim is filed the company is required to set aside a certain amount of reserves to cover any potential settlement. This money then is not available for the company to invest and thus is no longer contributing to their bottom line. The amount they have to reserve will vary according to the potential liability. But even for claims with limited potential liability, such as this one, the amount the company is required to reserve will be high enough to "encourage" the company resolve it quickly.

So why is AIG not quickly resolving this claim? Well - insurance companies have to also watch costs very closely. As such they give their claims adjusters very limited authority in how much they can offer for settlement. Shockingly, a typical limit for a level 1 adjuster is just $500. I suspect that this claim, being that there are no injuries, is in the hands of such an adjuster.

Now from the companies perspective if they are obligated to pay $800 on this claim they would much rather pay it sooner rather than later. But this may not be how the claims adjuster sees it.

Claims adjusters are evaluated, in part, by how long, on average, claims assigned to them take to close. One way to quickly close a claim is to summarily deny it. But this is not practical when dealing with an adjuster from an opposing company as they can readily determine the merits of the claim for themselves. On the other hand the adjuster can simply pay each and every claim in full and close them quickly that way. This would make the company very unhappy (and unprofitable) very quickly so, in addition to monitoring average time to close they also monitor average pay out. If an adjuster is paying out more than what is expected then that calls for some in depth auditing of past settlements. Companies are quick to fire adjusters who are too generous. This is why they set strict limits on how much they can settle for.

So here is one, hypothetical, look at what is going on:

Insured calls in claim and largely admits being at fault. Statement is taken and as no injuries are reported and damage to the vehicle, if any, is likely minor and (really?) how much can a bike cost the claim is assigned to the very bottom level claim adjuster. This adjuster will have very little experience (probably less than 1 year maybe even less than 6 months) so they only have limited authority as to how much can pay - say $500. The adjuster instructs the insured to get estimates and begins assembling the claim file necessary to support any decision on the claim. From the insured's account the adjuster will know that a police report will be filed so that is ordered for review (note - I find it odd that, in this case, the adjuster is making the OP a settlement offer yet stating that they have not yet seen the police report. Standard practice is to review ALL the available documentation before making any offer).

Next the cyclist is contacted (or contacts them) and their statement is taken. The key thing here is for the insurance company to quickly gage the potential liability. Is the cyclist claiming any injury? No - good then it can stay with our level 1 adjuster. Once injuries are reported or there is other indication of higher potential liability the claim would have to be bumped up to a more experienced (and expensive) claims adjuster. The cyclist is told to send in their documented claims of damage. Time to sit back and have a cup of joe until the paperwork all arrives.

A few weeks later the adjuster gets the estimate from the cyclist. "What's this? $800 for a bike?" he shouts as coffee slurps onto his stain resistant dockers. "I can't pay that" he mutters to no one in particular. "What to do ... What to do.." he thinks. "I'm new in the job and the bosses are already on my back to close claims quicker. I don't want to go back to flipping burgers at McDonald's but I can only pay out $500." He could simply refer it up the line to the next higher level adjuster but then they would get credit for the closure not he.

"Hmmmm" he purrs as he reviews the claim file. The cyclist told him he didn't have a car hence the claim for bicycle rental. "What kind of person doesn't own a car? Even I own a car and Lord knows what a mess of financial trouble I'm in!"

"He must need money badly - I know $500 would be real good to me right now. Let's see the police report again to refresh my mind - oh! Not good here. Good thing I'm not dealing with another insurance company as we'd be dead to rights on this one. Our insured turned into the cyclists path and he couldn't stop. No moron would intentionally ram their unprotected body into the side of a 8000 pound SUV if it could be avoided. Well - maybe those morons on the "Best of Jacka$$" DVD I have at home would! Loved that show .... Better to pretend I haven't seen this yet".

So he decides to bluff his way - offer 60% ($480 - just under his limit) and pretend he hasn't seen he police report so he can, with as much a straight face as possible, maintain the cyclist is 40% at fault.



******* Here is what I would do **********

1) Recognize that, for whatever reason, the adjuster you are dealing has his hands tied and can't pay you the full amount of the claim.
2) Ask to speak with the adjuster's supervisor. Be professional and courteous. Part of your goal here is making them realize they are not dealing with a person of limited intellectual ability (after all in their minds anyone who doesn't own a car can't have great reasoning faculties). The supervisor also has authority to pay a larger amount. Ask the supervisor to please review your file, at their convenience, especially the police report listing their insured as at fault and give you a call back when they are ready to discuss it.
3) If they stick with the 60/40 determination (by the way this is something the adjuster made up out of thin air) because you "didn't avoid their insured's reckless maneuver" ask them if they, personally, would be willing to ram their body at 10, 15 or 20MPH into the side of an 8000# SUV?
4) Let them know, after a reasonable time period, if they haven't agreed to pay your claim that you will file suit in the local small claims court. I'd give them as much as 2 months or more on this. What you are doing here is saying "look - I know I'm entitled to the full amount and, what's more, I can wait for it". While the claim remains open the adjuster (and hopefully now the supervisor) will have to explain to their bosses why it hasn't been closed. While the claim remains open they have dead reserve not available for investing. They have already admitted partial liability so they can't deny the claim and close it that way.
5) Just as $800 isn't worth it to you to hire a lawyer - $800 is not worth it to them to defend a claim in a faraway court - especially with a police determination in your favor.


Good luck!

Brian

DC- Thank you for that info. Having only worked in CA, I'm not aware of how all the other states handle their liablility.

Budster - Although it depends on the officer, there's always a chance he can get the officer to amend the PR with info regarding his light. A statement from his riding partner will really not help, as he's not an unbiased party.

And yes, all Anthony needs to do is prove to AIG that he had no opportunity to take evasive action. He'll need to show that the accident was unavoidable on his part, and this loss would not have happened, if not for the motorists actions.

The bitter pill that is insurance would take up a whole other thread. This company is clearly protecting their policyholder, that's what she paid for. I can think of one company that's great if you get hit by an uninsured motorist. I can think of another that's great if you're at fault, but want your insurance to pursue the other party anyway. They're all different, and it's a crap shoot when you choose one.

Slow Train

I think your beef is really just with one particular adjuster and not the company or the industry as a whole. In your case you have an adjuster making a judgement call. If this were an institutionalized practice on the part of the company the entire business would collapse under the weight of all the claims in contention.

Brian

Slow Train - Thanks for that amusing and somewhat accurate take on claims. It's close enough that I wouldn't argue too much of it. I do suspect this issue has to do with their deductible, but I'm just guessing on that one. Making an offer without the PR in hand is just ridiculous - that's going to come back to bite the adjuster where he sits. There is a course of action far more effective than asking to have the supervisor review it. He can submit a complaint to the DOI, and then it will get handed down, rather than up, to the supervisor. He needs to note in his letter of complaint all the facts, escpecially the light issue, and the fact that the adjuster made his determination without even seeing the PR.

I made my complaint to Farmers after their adjuster told me my personal claim was denied, and then hung up on me. You just don't do that to subrogation adjusters, ever. I don't know if that guy's gone back to flipping burgers, but he's not working for Farmers any more.

Seamless

That's known in some states of the US as the "last clear chance" doctrine. It doesn't apply in many jurisdictions, but apparently we are to believe from posts such as yours that insurance companies don't need to base their decisions on the laws of the jurisdiction in which a claim can be made. That's nonsense, frankly, and is another illustration of why you shouldn't be giving legal advice such as the above quote. An earlier post by DCCommuter noted that in Texas, for example, it would not be a defense unless the claimant was more than 50% responsible.

Why the OP would rely on legal advice posted online in an international forum is another question.

Brian

Once again, I'm not giving legal advice. I also don't know where you get the idea that "insurance companies don't need to base their decisions on the laws of the jurisdiction in which a claim can be made". You need to click the link DC provided, and actually read what's there. It's regarding subrogation, and the right to recover, and it clearly states that the information is not comprehensive in any way. Either you are confused, or AIG is clearly in violation of the law. Care to hazard a guess on which one it is?

And what does it matter that this is an international forum?

Seamless

You may honestly believe that what you have written in the course of multiple postings does not constitute "legal advice," but that is incorrect. Your postings have at least asserted standards of relevant and admissible evidence, attempted to assign the burden of proof, and claimed to identify the legal issues required to be proven to establish liability and possible affirmative defenses. All of those statements constitute advice about legal issues--even though uttered by a lay person--and it may very well be wrong for this specific incident. Generalizations are rarely helpful and often dangerous when specific legal situations are raised, and that's why most attorneys would preface or close their contribution with an appropriate caveat.

As to "insurance companies don't need to base their decisions on the laws of the jurisdiction in which a claim can be made" sorry the sarcasm was too subtle. It states what seems to be the major assumption of your postings, because your pronouncements disregard that the validity of your advice depends on the law of the forum in which a claim could be made, and it's readily apparent you don't know those specific laws.

The fact that it's an international forum just means that more people from points all over the globe, believing it to be helpful, offer free but incomplete and misinformed advice about an issue that can be correctly answered only by reference to the law of the jurisdiction(s) having an interest.

Brian

And you have issues with what you consider to be my generalizations? Please. My advice is based on handling subrogation claims for 10 years. What's your background?

DogBoy

Okay, the adjuster and the IS guy put in their $.02, here's the perspective of a P&C Actuary.

If the case is as stated in the initial post AIG is full of it. If the police report clearly shows that the SUV driver was at fault, AIG doesn't have much of a leg to stand on. The light/no light thing may be ignorance, so get the letter from the police officer and show that they are incorrect. I would merely disagree with them in a certified, signiture return letter. State you did have a light and attach the statement from the police. Then state that you did not have an opportunity to avoid the accident. What POSSIBLE reason could a cyclist have for not wanting to avoid a collision with an SUV? Explain what you did...brake hard...and why you didn't swerve away (swerve left and get run over, swerve right and hit the car when she stops short, or couldn't swerve or you'd hit the other cyclist.) Explain what you did and why what you did was the correct course of action. Finally reassert your damages and state that you expect 100% reimbursement.

Be sure to keep a copy of their letter to you and your response to them. If they deny you again go for small claims court.

As an aside, the IS guy is wrong about at least one thing. When a company puts up a reserve the money IS still invested and is still contributing to the bottom line. It isn't until a claim is PAID that the money is no longer there. If you want to know why PM me. I don't think the group as a whole cares much about insurance company accounting.

Brian

I'll take the PC Actuary and the IS guy over a computer nerd attorney that specializes in intangibles.

We seem to be in agreement that he needs to document his reasons for disputing AIG's decision, as well as provide proof regarding his light. This is the same thing I did when I was contacted by a claimant. Ask them to put it in writing. I also tried to explain exactly what AIG should be considering in their decision, and what the cyclist should provide to defend his position. I hardly think that qualifies as legal advice.

Seamless

No issues with somebody making generalizations--when s/he has enough knowledge and confidence to recognize and acknowledge the lack of knowledge that make the generalization unreliable.

As to my background, it's been concentrated in civil litigation (trials, arbitrations, appeals, and the months and years of pleadings practice, paper and oral discovery, expert witness review, motions practice and all the other court appearances leading up to final resolution) for a couple of decades. Including subrogation. Including on behalf of insurers--lots of insurance subro and direct defense work among a variety of p.i. and property damage claims (auto accidents, workers compensation, products liability, misbehaving animals/owners, contaminated food, premises liability, construction injury and third-party defense claims, dram shop, employment and discrimination, a smattering of paternity, divorce and child support, and even wrongful insurance claims handling), including settlement negotiations. (Probably more but the resume isn't at hand.) Before that, a few years in a pretty good law school with courses on evidence, civil procedure, burden of proof and the like. Oh yea--bar exam. Admissions to state and federal practice. Along the way an occasional continuing legal ed update. You know, all that superfluous litigation mumbo-jumbo that fixes the problems caused by misinformed liability and subrogation claims people. In the past couple of years the scope of litigation has incorporated other civil areas such as intellectual property, bankruptcy, insurance coverage disputes.

But you're right, I haven't worked in-house as a subrogation claims handler.

Enough about us, though; I thought the forum was about bicycling.

Brian

I can post your education history, as well as your photo online, but that wouldn't be nice. You've shared enough. Yes, this is a bike forum, not a computer forum. A cyclist has come here for advice. I gave some advice based on my handling of thousands of claims. I don't know what volume your firm handles, but when you've got your nose in 20 or 30 claims a day, you learn a few things. I can think like a subrogation claims person. You cannot. I'll behave now. Your contributions are appreciated within their intended context.

Seamless

That's such an odd comment.

Nonetheless, I am compelled to concede the crushing argument that no photos of me online are worth a download, if physical attraction is all that important...and that's in some way helpful and germane to the OP?

Okay.

froze

Was that childish or what? Reminds me of elementary school children antics!

Brian

Actually, part of a subrogation claims adjuster's job is to locate the responsible party. Even with access to 3 billion public records, I could usually find what I needed on the internet for free. I was just being a smart ass, as I did my research to see what kind of background the Mac geek has when it comes to dealing with claims. His firm specializes in intangibles, hardly what we're talking about here. I was going to make my point that I was good at all facets of my job, but decided against it.

Seamless is only trying to look after the best interests of the OP, and not in any way disputing the validity of the comments I've made with regards to how an insurance company operates, so I have no issues with him.