Witnesses and Statements
TIPS FOR SECURITY STATEMENTS OF WITNESSES TO DIVING ACCIDENTS
WITNESSES AND STATEMENTS
It is through the eyes and ears of fellow divers, tenders and supervisors that the legal proof of a legal claim is found.
Documentation is extremely important. As will be discussed later, the insurance company investigators and adjusters have enormous resources to investigate a diver’s claim. Insurance company investigators go to great lengths to secure statements and evidence.
An injured diver should obtain, as soon as possible, a list of names, addresses and phone numbers of all personnel aboard the vessel. Memories are short, especially in the case of trauma following a CNS hit or through the excitement and emergency of the moment.
Securing statements of witnesses shortly after the accident serves two extremely important functions. First of all, these statements capture the details of what, why and how an accident occurred. Memories are better shortly after the accident than when a diver or his attorney seeks to acquire a statement several weeks, months or years later. By that time, it may be too late.
Secondly, a written or recorded statement is impossible to change at a later date. A tender may remember in vivid detail the error or mistake made by the captain of the vessel. Six months later, however, on the verge of breaking out as a diver, subtle pressures may be placed on the tender to “protect the interests of the company.”
GIVING A STATEMENT
An injured diver should never give a sworn statement or written account of an injury.
Many a claim or lawsuit is jeopardized by the diver’s rendering a statement to a “concerned” adjuster, company claims representative or insurance company investigator. The adjuster or insurance company representative may explain that a statement of how the accident occurred, written or recorded, is necessary to “process the claim”, and, that without a statement the settlement or maintenance checks will not be forthcoming. This is complete nonsense.
Information regarding who caused the accident, or why the accident occurred, is not required for obtaining maintenance and cure benefts. The statement is taken for one purpose and one purpose alone – to acquire any information which may later be used against the injured diver. The only requirement to obtain medical payment is to assist in flling out an accident report for the company.
For injured divers, it is highly advised to never allow anyone, with the exception of a treating physician, or the diver’s attorney, to take a written or recorded statement. When discussing a claim with an investigator or adjuster over the phone, preface the discussion with a request that the conversation is not to be recorded. Better still; avoid unnecessary conversation with the adjusters and investigators.
Be very cautious in flling out detailed intake forms given to you by a company doctor. Certainly provide information concerning your illness or injury. Be careful, however, when the company physician asks you to give a detailed account of how an incident occurred, who is to blame for the injury and why. Be aware that anything you write or report is forever memorialized.
Carrying a small camera in one’s gear is a minor inconvenience which may later prove a very smart idea. In the legal forum, a picture is surely worth a thousand words. Nothing better conveys the message or the proof of a wrongful act than a photograph.
Photography should not to infringe on company secrets or compromise national security. Use discretion. However there is no law whatsoever prohibiting a worker from documenting through photography an unsafe condition or practice. One’s flm and camera are personal property.
Following a dive accident, the administration of the claim and any payments of medical bills may be taken out of the hands of the dive company and placed in the hands of the insurance company. At the forefront of this system is the adjuster; his or her role is multi-faceted.
The insurance company, usually located in another state or abroad, must have someone employed locally who can learn about the incident and then inform the insurance company whether the claim has merit, and if the claim has merit, how much the insurance company should pay to resolve the claim. To do so the adjuster must secure witnesses’ statements and medical reports.
Another responsibility of an adjuster may be to negotiate a settlement with the injured diver. At that point the adjuster is working on behalf of the insurance company or dive company. It is the goal of the adjuster to secure a settlement at the lowest possible dollar fgure. The adjuster is not advocating on behalf of the diver; any representation to the contrary is untrue.
The relationship between the diver and the dive company is of no consequence once the wheels of the claim are put into motion. This occurs shortly after the accident. It is the insurance company which must ultimately shoulder the fnancial burden, and it is the insurance company who, in the fnal analysis, “calls all of the shots.”
An adjuster’s or company’s promises to “make good on the accident” or “to take care of our diver” lack legal support unless they are preserved through a valid written contract. If a diver is promised anything, such as a job, pension benefts, etc., such an agreement should be preserved in writing. As will be discussed later, all settlements have great weight when in writing, but very few oral agreements have substance.
Communications with adjusters, investigators or insurance company representatives should be held to a minimum. The diver will undoubtedly be assured that the purpose of the communications is to acquire information for the diver’s beneft. Remember that the only beneft of any communication with an adjuster is one-sided, to the beneft of the insurance company.
Adjusters are well-trained professionals who handle claims on a day-to-day basis. They are seasoned veterans who know their job very well. One rarely meets an adjuster who is not a “nice guy.” To reduce the value of a diver’s claim they will call him or her, talk with them and their family members, employ private investigators, or do whatever possible to gather information which has a detrimental effect on the diver.
One method employed in the “adjusting process” is to attempt to accompany the injured diver to a doctor’s appointment. Nothing can have a greater chilling effect on the doctor/patient relationship than to have a stranger present. There is no legal requirement to allow a company representative to attend a doctor’s appointment. If faced with such a demand confde in your doctor; they may understand and honor your request for privacy. If the company doctor feels that it’s a good idea that the adjuster attend you may want to consider changing doctors.
An adjuster may coerce the diver by delaying maintenance payments needed to provide for family needs. If the diver feels uneasy discussing his or her claim with an adjuster, it is probably for a good reason. In dealing with insurance company adjusters, a diver is not dealing on equal ground.
On numerous occasions we have seen adjusters called as witnesses for a diving contractor at trial. After months of being the injured diver’s “buddy” shows up at trial testifying that the injured diver told them “a much different story before hiring an attorney”. The adjuster will read notes of personal and telephone conversations, the goal to infuence a jury in a negative way.
Delise & Hall has been criticized on more than one occasion for the foregoing remarks regarding adjusters; most of the criticism has been levied by diving contractors or by the adjusters themselves. It must be noted and recognized that the adjusters are just doing their jobs. Keep in mind that their job is not to help the diver and they are being used to negotiate a settlement, be aware that their job is to have the insurance company write the smallest check possible to the diver to settle their claim.
During the stressful, unnerving period following an accident, the concerns of the injured diver are more often than not with survival – “how am I going to make it, how can I provide for my family?” During this same time period, the insurance company has already opened a fle, assigned adjusters and attorneys and set the stage for an anticipated, hopefully low, settlement.
While the diver is concerning himself with survival, the insurance company may be only concerned with “adjusting” the case. It is during this initial unnerving period, immediately after the accident, that the role of the investigator comes into play. It is his or her job to uncover any evidence whatsoever to show that the diver may be fabricating or exaggerating his or her injuries. The insurance company will hire an investigator to follow, to flm, or to otherwise document that the diver has reached a point of full recovery or is faking his or her injury.
A regimen of jogging, swimming or weight lifting to get back in shape will be documented on video and used not as evidence of rehabilitation but as evidence that the diver has reached full recovery or is malingering.
Delise & Hall has represented divers whose privacy was disturbed for weeks by investigators in search of damaging evidence. The frm has represented divers who have had private investigators perched in trees on private property in the hope of catching the diver in an awkward position. Horror stories abound.
Once a claim is made, the injured diver lives in a fshbowl. There is nothing illegal about hiring an investigator, and it must be remembered that, as the police clearly say, anything that you say or do will be used against you at a later date.