Woodland Hills personal injury lawyer Barry P. Goldberg has noticed a new trend in car accident cases—the at fault party refuses to admit fault even though liability is fairly obvious. In additional trend, the insurers of at fault parties are going along with it in an obvious attempt to frustrate deserving and injured claimants. There was a time—believe it or not— that the insurer of an at fault party would independently and objectively evaluate a claim. If their insured was at fault, then the insurer would pay the claim. No more!
What if the Insurer Cannot Speak with its own At Fault Insured?
This is another relatively new wrinkle that the public faces in the obvious at fault insured scenario. The insurer makes a very half-hearted effort to contact its own insured to get the insured’s version of the facts. Without that statement, the insurer will refuse to admit liability even in the clearest of circumstances, such as a rear-end accident.
This lack of effort on the insurer’s part can be devastating to an innocent accident victim, especially when the injured party does not maintain collision coverage for the accident. For the entire time the insurer does not get a confirmation, the injured party goes without a vehicle or a rental car even though he or she was clearly not at fault for the accident. Try explaining this to an upset personal injury client!
There is a simple explanation why these wayward at fault insureds are not held accountable. These days, the insurance adjusters are way overworked and are assigned way too many files. As a result, it is difficult, if not impossible, to speak directly with the handling adjuster.
Rather, our office has experienced the phone tag run around on almost every case. The adjusters do not take incoming phone calls during a normal work day. On their messages, they commit to returning the phone call within 24 hours (Then, they say something like “we are committed to excellent service, etc.!’) Very often, at our law office, we are receiving the return calls very early in the morning of the next day before our office is opened and well before normal business hours. We return the phone calls during regular business hours and it starts all over again.
It is very fair to assume that these overworked adjusters are playing the same games with their own at fault insureds. The adjuster calls and leaves a message. The at fault insured returns the call at a convenient time (regular office hours, during lunch or after work). They leave a message. Then, it starts over again! The at fault party is simply not that motivated to hunt down the adjuster and admit that they drove their vehicle incredibly negligently causing an accident. They probably figure that they will be cancelled or sur-charged. So, what’ the hurry? They returned the call and showed some minimal effort.
In our law office, after a month of double talk that the adjuster has not yet confirmed liability, we file a law suit to “compel” the at fault insured and the insurance company to talk. Remember, we are talking about a clear and obvious liability situation.
What if the At Fault Party Refuses to Admit Liability After a Complaint has been Filed?
It is not uncommon for insurance appointed defense counsel to continue to refuse to admit liability (and causation and damages) even though liability is objectively obvious. Sometimes our office receives “objections” to questions and requests, essentially stating that “investigation is underway.” So, they can neither admit or deny liability. This is perhaps even more frustrating to an injured plaintiff who can not understand how the legal profession will allow this type of delay and lack of candor to exist. They ask “why aren’t you doing something about this?”
The simple answer is that it is not that easy and the legal system seems to favor evasiveness and delay. A complaint to the insurance commissioner will not yield results in these circumstances because the complaint is based on an ongoing and unresolved dispute. For 3rd party claims, there is no such thing as “bad faith.” So, the insurers and their appointed defense counsel can be as obtuse as possible.
The Request for Admissions is a Valuable Tool to Force and Admission of Fault.
Plaintiff law firms need tools to force a just result. In chronological order the plaintiffs have the following tools:
- The insurance policy limits demand;
- Filing a law suit;
- Serving a C.C.P. 998 Offer to Compromise;
- Serving Requests for Admissions; and
Serving Requests for Admissions is an underused, but very valuable tool to force an at fault defendant to admit fault. Our office serves them in every case!
During discovery, a party to a civil action may request another party to “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.” (§ 2033.010.) “The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.) “Requests for admission are not restricted to facts or documents, but apply to conclusions, opinions, and even legal questions.” (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353.) The responding party has a duty to make a reasonable investigation before answering items that do not fall within his or her personal knowledge. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634; Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.)
California follows the American rule, and “each party to a lawsuit ordinarily pays its own attorney fees.” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.) Nevertheless, a prevailing party may seek to recover fees required to prove the truth of certain matters. Pursuant to section 2033.420 (a), “[i]f a party fails to admit . . . the truth of any matter when requested to do so . . . , and if the party requesting that admission thereafter proves . . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.” (Emphasis added.)
“Unlike other discovery sanctions, an award of expenses pursuant to [section 2033.420] is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was ‘of substantial importance’ [citations omitted] such that the trial would have been expedited or shortened if the request had been admitted.” (Brooks, supra, 179 Cal.App.3d at p. 509.)
Trial Courts Generally Side with the Injured Party When an At Fault Party Denies the Obvious.
The trial courts hate the waste of time. Not admitting fault (or causation or damages) wastes a tremendous amount of time. More and more, the courts are willing to shift the attorneys’ fees and costs when the at fault party fails to admit liability. On a moderately sized case, the attorneys’ fees and costs can be substantial, or even exceed the amount od the verdict. Consequently, when an insurer and its appointed defense counsel are cornered with well-drafted Requests for Admissions, they are more likely to convince the insured to settle in order to avoid the additional award and to avoid the anger of the trial judge.
Injured plaintiffs just want a level playing field. While it appears that the insurers and defense counsel are holding all the cards, an experienced and aggressive plaintiff’s personal injury law firm has available tools to force an at fault party to admit fault!