Why Your Family Should Not Give a Recorded Statement to the Other Driver's Insurer After a Fatal Crash

Published February 13, 2018 · For Grieving Families

In the days after a fatal crash, while a family is still making funeral arrangements, the phone often rings with a call from someone the family has never heard of. The caller is polite and sympathetic. He or she works for the insurance company of the driver who caused the crash, and asks a simple question: may we record a short conversation about what happened?

It is natural to want to cooperate. Many people feel that telling the truth can only help. But a recorded statement to the other side's insurer rarely helps a grieving family, and it can do real harm. This post explains why, and what to say instead.

Who the adjuster works for

The adjuster who calls may be kind, and may genuinely feel for your loss. But his or her job is to evaluate and limit what the insurance company pays on behalf of its policyholder, the driver who caused the crash. The adjuster does not represent your family and owes your family no duty to protect your interests.

That is not a criticism of any person. It is simply how the system is built. Your family's interests and the insurer's interests are opposed on the very questions the adjuster wants to ask about.

How a recorded statement can hurt

You are being asked about things you did not see. Most family members were not at the crash. Yet adjusters may ask about your loved one's habits, health, driving, phone use, whether he or she was tired, or had been drinking. Answers like "I don't know, maybe" or "he sometimes drove fast" can later be quoted as if they were facts.

Grief affects memory and words. In the first weeks after a death, people are exhausted, in shock, and sometimes on medication to sleep. Small mistakes about times, places, or details are normal. But in a recording, they become permanent, and they can be used to suggest that you are unreliable.

Questions about the relationship are questions about damages. Ohio's wrongful death statute, R.C. 2125.02(B), allows a family to recover for loss of support, loss of services, loss of society, loss of prospective inheritance, and mental anguish. An adjuster who asks how often you saw your father, whether your marriage had problems, or how much your son contributed to the household is gathering information about exactly those losses. A casual answer given in grief can understate what your family has lost.

Early statements are made before the facts are known. In a fatal crash, the police reconstruction, the coroner's findings, video, vehicle data, and witness interviews may take weeks or months. A statement given before those are available can lock a family into a version of events that turns out to be wrong.

You are not required to give one

You generally have no obligation to give a recorded statement to the other driver's insurance company. You can decline politely. Something like this is enough:

"Thank you for calling. Our family is not giving any statements right now. Please send anything you need in writing, or contact our lawyer."

You do not need to explain, argue, or answer "just one or two quick questions." If the caller persists, you can end the call. Write down the caller's name, company, phone number, and claim number, and keep it with your papers.

Your own insurer is different

Your own auto insurance policy, or a policy held by your loved one, may contain a duty to cooperate, which can include giving a statement in some situations. That is a contract between you and your insurer, and it can matter for coverage such as uninsured or underinsured motorist benefits. Even so, it is wise to talk with a lawyer before giving any recorded statement, even to your own company, so that the statement is limited to what you actually know and the timing makes sense.

Do not sign anything, either

Along with a request for a statement, families sometimes receive medical authorizations, releases, or settlement papers early on. Do not sign them without legal advice. A broad medical authorization can open your loved one's entire medical history, and a release can end your family's claim.

In Ohio, a wrongful death claim belongs to the personal representative of the estate, who brings it for the exclusive benefit of the surviving spouse, children, parents, and other next of kin under R.C. 2125.02(A)(1). Under R.C. 2125.02(C), the personal representative may settle the claim only with the consent of the court that made the appointment. An early offer made directly to one family member, before an estate is even opened, is not how these claims are properly resolved.

What helps instead

A good way to protect your family is to let the evidence speak, and to let one person, usually your lawyer, handle communications with insurers. In the meantime:

• Keep a folder of the crash report number, the investigating agency, names of officers and witnesses, photographs, and every letter or card from an insurer.
• Write down what you know firsthand, for your own records and your lawyer, not for the insurer.
• Preserve your loved one's phone, vehicle, and belongings if you have them. Do not let a vehicle be sold or scrapped before it has been examined.
• Be careful online. Posts and comments about the crash or your loved one can be read by insurers.

Our pages on fatal car crashes and fatal truck crashes explain the evidence that matters in these cases. If the driver fled, our post on Ohio's Brandon's Law explains what changed in 2016 and how families can look to their own coverage.

Mind the deadline

Insurers sometimes keep a claim "open" for a long time without resolving it. That does not stop the clock. Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death. You can read more about what a family may recover.

If there are children at home, the weeks after a crash are hard enough without insurance calls. Our post on talking with children about a sudden death offers some practical help.