by William23 » Sat Jun 21, 2008 10:57 am
Hi. Everyone on ampminsure. My girlfriend is in this situation. She lives in this big apartment complex. She trip and fell on this defect near the step. After the fall she didnt go to the doctors until a few days later. My girlfriend isnt the type to run to the doctors for a little pain. She knows that is just took a fall and of course she is going to feel pain. But after a few days the pain got worse. She went to the doctor and they put her on pain meds and a splint. Doctor said her body may heal and resolve the injury or it may require surgery. After that she hired an atty. Later on she and her atty discontinue the services for a reason. She was trying to handle it on her own. Finally after the investigation was done the adjuster deny the claim. The adjuster states the reasons for the deny is 1. The hazard was not report to the owner, 2. Residents of the didnt see hazard and 3. There was no witness or proof it happen there. Owner was notified by atty and picture of defect.
Posted: Sat Jun 21, 2008 11:04 am Post Subject:
Also she got picture of the defect. Some people have told her that some insurance dont take claimant serious enough without a lawyer and filing. She doesnt want to use a lawyer because she said they are greedy and all they care about are their fees. What can my girlfriend do? I think the adjuster just want her to go away.
Posted: Sat Jun 21, 2008 01:30 pm Post Subject:
If your girlfriend wants to be healed of her pain then hiring a lawyer may be her only way go. You are right. Lawyers do seem to charge alot for thier services, but if your girlfriend really wants to be fixed(physically) and is not looking for a quick cashout, then let them fight it for you. Some think money will make their pain go away.
Posted: Sat Jun 21, 2008 03:07 pm Post Subject:
I think the carrier is denying the claim as the owner did not have constructive notice. That is, the owner did not know and should not have known about the defect so they could not address it. That is, if someone should not have known about a defect, they could not have been negligent in not addressing it. I'm not saying I agree with that, as I don't know anything about the defect, etc. This addresses number 2 as well but unless the carrier was local or hired an independent adjuster, it may not be correct. They may just be saying that no one who saw the defect prior to the accident has come forward, so they don't "know" of anyone like this. as far as number 3... while this may be true, it does not hold much water in court. The fact that a defect existed, the person was injured, the person is stating that is how it happened, and it's reasonable that it could have happened, then a court will almost always accept it as fact. She does walk in this area in order to get to her apartment, correct? If so, toss number 3 out.
As far as constructive notice... this really depends on a lot of facts and the carrier may be correct. The problem with that is that a landlord owes a _great_ deal of care to provide a safe environment for tenants. If there was a small hole in the lawn on some outer corner of the property, then yes... constructive notice would be an issue. But if the defect can be seen and is in a pathway that people use everyday, then constructive notice really does not fly very well. The argument against it is _should_ the landlord have known about the defect. The landlord is responsible for inspecting their property, especially the areas with such heavy use.
You could also knock on some doors in the area to see if you can find someone who knew about the defect. If you do, give their information to the insurance carrier. If this was only an apartment number then the carrier should go out or hire an independent adjuster to knock on the person's door if needed.
One more item... you state the carrier states that they don't have a good indication that the accident happen on the property. What I said above applies but betting that your girlfriend did not tell the property owner about the defect when the accident happen. If this is correct, I can see their point. A person injures themselves because something on the property is wrong and they don't bring this to the attention of the property owner? Why not? It makes sense that they would not want someone else to be hurt in the same way and would want to let the property owner know about their injury... even if they were not going to seek medical treatment. This does not fair well when a person is investigating the accident.
I agree with the others... if the carrier won't change their minds, your girlfriend could hire an attorney as this may be the only way for her to collect.
Commercial liability policies usually contain Medical Payments coverage. You can ask if it does (they would be required to tell you this). If it does, are they denying this coverage as well? If they were, they'd be stating that there is enough indication to show that the injury did not occur on the insured's property. That is a slippery slope.
Posted: Sat Jun 21, 2008 03:43 pm Post Subject:
So what should she do ask people like other tenants....mail person. How will that change anything? how someone seeing it could change them from deny? What can she say or do to get the adjuster to change?
Posted: Sat Jun 21, 2008 04:04 pm Post Subject:
I think it would be a good idea to find other people that knew about the defect. In doing that, you'd be able to show that all these people knew about it, so the property owner _should_ have known about it also. An adjuster is going to ask themselves, how is it going to look when all of these people stand up in court and tell the judge/jury that they knew about the problem. It's going to paint a clear picture that the property owner should have then also known about it. There is a possibility that these people may not want to cooperate. You could at least find out what apartment, etc they are in (names, even first, would be good also). You can report this info to the adjuster and if they ask for contact information you can tell them, I don't have it but you can feel free to speak to your insured to get it or send someone out to knock on their door. While your girlfriend has a duty to prove her case, that is in court. At this point your just doing part of the adjusters job for them in finding out this information.
Let me be clear on one point... the it does not need to be shown that the property owner _knew_ about the defect... only that they _should_ have known. The property owner also owes a great deal more care in maintaining the property and providing a safe environment as they are charging a fee for this (it's called 'rent"). By being in the business of renting an apartment and collecting money for it, they are assuming a greater responsiblity.
Your girlfriend should see if she can find anyone who knew about the defect. She can then also let the adjuster know that she dropped her attorney because xxxx. Getting an attorney and then dropping them is, well, in 13 years I've never heard of anyone dropping their attorney for the reason you mentioned. She signed the dotted line and then determined that she wanted to handle this on her own? I've never seen that happen before and I'm betting the adjuster has not either. Usually attorney choose not to represent their clients any longer because of a HUGE issue that equates it not being worth an hour or two of their time. Perhaps the adjuster is thinking this as well. Your girlfriend might want to explain her thoughts on dropping the attorney. She can also point out that she feels the property owner not knowing about the defect is moot. That the property owner _should_ have known about it and mention what I did above. Also, she could tell the adjuster that stating that there is not enough information to show the loss occured on the property is really not a good argument as any judge/jury is going t accept this as fact (i.e. we have a defect, we have an injury, and we can show that it's reasonable that the injured person was hurt where they state as they are required to be in that area every day... what information does the insurance company have to show that it did not happen the way it's claimed?). Who's a jury going to believe... the injured tenant who pays her rent or the slumlord property owner? :)
Granted, there is a _lot_ of information that has not been mentioned.
Posted: Sat Jun 21, 2008 05:50 pm Post Subject:
Thank you so much tscope and everyone else. But tscope lets say she find a person who seen it and they say its been there for 2weeks for example. Wont the insurance say something like why didnt she see it or why didnt anyone else got injured.
Posted: Sat Jun 21, 2008 05:58 pm Post Subject:
Why she did not see the defect and avoid it is always a defense, it's called "open and obvious". But this is _usually_ just a mitigating factor in the loss, not _usually_ something that negates negligence against the property owner all together (something like someone walking out in the parking lot while it's snowing and slipping is usually an example of "open and obvious" negating negligence). It really depends on how obvious it was.
As far as someone else not getting hurt... well, the insurance company should consider themselves lucky. That is not an argument against liability.
Posted: Sat Jun 21, 2008 08:45 pm Post Subject:
Thank yot a ton Tscope. I will pass this information on to her. Hope she can find a tenant who dont mind getting involved. If she does do this person write a statement or something is their a special format? Than does she send it to the adjuster? But dont they get rid of the file or close it since its denied?
Posted: Sun Jun 22, 2008 03:03 pm Post Subject:
Tscope you also stated there is alot of information not mention. What do you mean by that?
Posted: Sun Jun 22, 2008 03:19 pm Post Subject:
What the defect was, where it was located, what the person was doing when she fell, etc.
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