by dbpmnn » Fri Oct 22, 2010 05:22 pm
If someonene dies in a 2 car automobile accident, and the deceased had been diagnosed with sleep apnea months prior, how can the insurance company prove their reasoning for not paying out the policy with their reason being--the cause of death to not be an accident because the deceased had a condition that "likely" made the person fall asleep at the wheel, swerve and therefore cause the accident--yet the deceased was hit in their lane on the front drivers side door by the other vehicle straight on?? Oh--and it was raining heavily?? --
Posted: Fri Oct 22, 2010 10:56 pm Post Subject:
Is this "for real" or just a what-if question?
Sleep apnea has nothing to do with falling asleep unexpectedly (as does narcolepsy), it has to do with not breathing during sleep. Can it cause a person to be drowsy because they don't get proper sleep? Yes, that is a possibility.
How does a person get "hit in their lane on the front drivers side door by the other vehicle straight on"? Did this happen in an intersection?
The insurance company has the burden of proof that the death was not accidental if we're talking about an "Accidental Death" policy of some kind. This is one of the best arguments in favor of honest-to-goodness life insurance, in which DEAD IS DEAD, and it doesn't matter how or why, in most cases.
If they can prove that a person died from a "medical" cause, or that a medical cause contributed to the accident, then they can deny a claim for Accidental Death. For example, a person has been prescribed a medication that can cause drowsiness. They forget when they took their previous dose, and take another. The decedent's blood toxicology shows an elevated amount of the medication in the person's system. It could fairly be argued that the "accident" was due to a medical cause: intoxication, and was "under the control" of the deceased. Not an accidental death. No claim payable.
Same sequence of events, but connected to a life insurance policy . . . no questions asked. Claim paid.
Posted: Sat Oct 23, 2010 12:16 am Post Subject:
Yes it is for real--in your response to sleep apnea--I asked the same question--sleep apnea is when you stop breathing in your sleep--that doesn't make you fall asleep--I don't get it either??? Its a normal driver's license there are no restrictions on a texas DL for sleep apnea so the how do they even prove that--They can't-- And it was not at and intersection it was a 2 lane FM road which is a hill--as far as "head-on"--It states on the crash report as head-on, but she was hit coming down hill--they hit her front left door--which is the driverside front door--sorry I'm not in insurance so if i say it in the wrong terms--it's because I'm not familiar with you terms, and no she wasn't speeding--she was going around 50-55mph --speed limit was 60mph but it was raining extremely heavy. The other vehicle was estimated at a speed of 60mph and when they hit her(their vehicle's full front--head of the car--again, I don't know your terminology) they caused her to flip and when her car flipped, she was wearing her seatbelt and so during the flip she was partially ejected and the car landed on top of her killing her.
It sounds to me like insurance companies all lie--am i wrong when I say that the "insurance companies are supposed to act on behalf of the insured (who pays them) and look for the reasons the policy IS valid and payable--not the opposite--which is to look for reasons not to?? Isn't that the whole trust and good faith and fair part of insurance conduct??
Posted: Sat Oct 23, 2010 12:41 am Post Subject:
Yes--it is an AD&D Policy--
My other question is what part do the weather and road conditions play in this?? If they are claiming sleep apnea couldn't anybody claim just about anything--deer jumping out?/(It is in the country they are always out) --sleep apnea or a deer--when there are no other witnesses excect the other driver involved--which is a biased party, obviously--these two claims are "possibilities"--rain, grade hill, and wet road are facts--I have the Texas 2009 Fatalities Report--I have the weather report for the day it happened?? I can prove my reasons--But I get the feeling that doesn't matter--its whatever they say that goes, right?
Posted: Sat Oct 23, 2010 01:01 pm Post Subject:
I think that we may be missing something here. Instead of paraphrasing what the insurance company said, I would like to know their exact words. How long was the policy in force?
The insurance company isn't supposed to look at reasons to pay. If that was the case, they would constantly be the victims of fraud. They are supposed to make sure that claims are legitimate and then promptly pay as soon as they know that the claim is legitimate.
Posted: Sat Oct 23, 2010 09:36 pm Post Subject:
It sounds to me like insurance companies all lie
I'm not here to defend any insurance company, but this is an overly broad brush with which to paint them all. Still, I'm having real trouble with the whole sleep apnea thing as a cause of the accident. Even if she fell asleep "for an instant" (which, again, is not a "symptom" or side effect of sleep apnea), and missed her "last clear chance" to avoid the collision, nobody is going to be able to prove that. Looking at the radio dial, sneezing, coughing, all of those and much more, could be just as much a diversion and would not have altered the outcome.
As long as the death certificate does not indicate a "medical" cause of death, if you want to pursue this with the insurance company first, then you need to get to the uppermost senior claims department supervisor you can -- live on the phone -- to argue that if they think the cause of death was remotely medical, then they'll have to perform an autopsy of their own to prove it.
Insurance companies don't pay claims they are not entitled to pay according to the contract. And when they can't find a reason not to pay, they have to pay. This is the approach you need to take with them.
I would like to know their exact words. How long was the policy in force?
Yes, it would be valuable to know EXACTLY what the insurance company has said. But in an Accidental Death Benefit policy, the length of time a policy has been in force is irrelevant -- they are not medically-underwritten. There's no such thing as a preexisting accident, so nothing to misrepresent. These policies DO NOT PAY for a medically-related death, or for any of the EXCLUDED causes (such as intoxication, intentionally self-inflicted injury/suicide, commission of a crime/felony, and a few others). There is no "incontestability" provision in an AD&D policy -- no need for it at all.
Again, for others reading this thread, this is a classic example why LIFE INSURANCE is the correct product to own to provide funds to loved ones in the aftermath of the insured's death. No argument about cause (other than suicide or unreported preexisting conditions for which a person has received advice, diagnosis, or treatment for in the last 24 months or less), especially after the policy has been in force 2 years. DEAD IS DEAD, and it is not really the insurer's concern how or why at that point.
The insurance company isn't supposed to look at reasons to pay.
I understand what you're saying, but there's a better way to state it. In an Accidental Death policy, they DO look at the CAUSE OF DEATH as reported on the death certificate, to see if, by chance, death was obviously due to an excluded cause. As I opened with, they are not in business, in these particular LIMITED BENEFIT contracts, to pay all death claims. If a heart attack occurred and led to an insured's crossing the center divider and rolling the car, even if ejected and crushed, the insurance company could refute the claim on the basis that the person was dead/dying from a medical event not an accident.
I know that it's a stretch, and they would have to prove it in order to avoid the claim, but they have the right to conduct an autopsy at their expense, and there can be signs of "death" in heart muscle tissue that might support their position.
Having said that, I think, based on the information posted, the insurance company in this instance is barking up the wrong tree, trying to assert "sleep apnea" as the cause of death. I doubt that any physician/medical examiner would ever list that on a death certificate, and certainly not in this circumstance. I'd be willing to bet that the cause of death on the death certificate will be some type of "trauma" -- blunt force, crushing. And if that's the case, the insurance company is way on the short end of proving anything else.
My other question is what part do the weather and road conditions play in this??
None at all. They are NOT the CAUSE of the accident. But they are "contributing" factors -- we use the term HAZARD in insurance. An accident investigator will tell you that rain changes the "coefficient of friction" between the tire surface and the road surface (and when there is enough standing water to completely separate the contact between the tire and the road surface, it's called hydroplaning -- not much different than the action of a boat or surfboard or water skier moving at speed on the ocean or a lake).
The real cause of the accident under such circumstances is excessive speed . . . driving too fast for the conditions. Most states have a vehicle code section (California calls it the "Basic Speed Law", and the citation reads "Unsafe Speed") that says a driver is not to operate a vehicle at a speed faster than the conditions will allow. The posted limit might be 60 mph, but in an "extremely heavy" rain storm, a sand/dust storm, or in heavy fog, the "safe speed" might only be 20 mph. Your mother could also have been driving too fast at 50 mph.
My impression, based on your original post, is that the other driver involved left their side of the road and ended up on your mother's side of the road -- "the deceased was hit in their lane".
Obviously that would not have been their intent, but a good personal injury trial lawyer would lead them to admit they were negligent in driving too fast for the conditions. dbpmnn, if you haven't filed a wrongful death action against the at fault driver, I'd be curious to know why not -- unless you've already accepted some huge settlement from him or his insurance company.
And if you continue to have any kind of trouble with the insurance company that sold the AD&D policy to your mother, I would file a complaint with the Texas Dept of Insurance alleging unfair claims practices. Or you could find a really knowledgeable insurance bad faith attorney (not necessarily the PI one working the wrongful death action, and certainly not just any old attorney worth a dime a dozen) to file a civil suit against the company.
Posted: Mon Nov 01, 2010 02:53 am Post Subject:
AD&D can sometimes be a tough one, and there are plenty of shady companies out there offering these as stand alone contracts whose primary objective is to collect money.
This case sounds extremely unusual, and I too would like to see what the actual response from the insurance company is.
Remember, even if you die from complications from an accident, you have to die within a specified period of time from the actual event to be eligible for AD&D benefits in most cases. It's not a benefit I get too excited about, and I never recommend it as a rider to a regular life policy. If it's a free benefit on a group plan so be it.
Posted: Mon Nov 01, 2010 05:35 pm Post Subject: facts or speculation
Thank you all for your insite--My sister and i recently opbtained my mothers sleep apnea report--she was coming from a sleep titration study--turns out a sleep titration study is the second sleep apnea test which is also a "treatment/therapy"--which means when and if her airway got blocked while she was sleeping that nite and morning before her death, that the cpap she slept with, would either open her airway, or give her the needed oxygen she needed--so my mother actually had the best night's sleep of her life the night before she died--This information is quite useful, because it proves sleep apnea on this morning could not have contributed to her death--her sleep apnea was treated as it arose over the night --I am very curious how the insurance company will take this information--I have done some research on the policy, which it is a group ad&d policy that is from her employer--I have found out, not because the insurance company explained it at all, only from my own research--they aren't denying her death was an accident, they are saying it isn't a "covered accident" because her "medical sickness, disease, or treatment..contributed to the accident"--which they are claiming the accident happened because she swerved, and that her sleep apnea caused her to likely fall asleep causing the swerve---My question is how can they prove she swerved?? We do not believe she did because there are no witnesses except the other driver, no skid or tire markes, and how and where her vehicle was hit.. The other driver claims she was all the way in their shoulder so they swerved so they wouldn't collide--there is no possible way she could have been in their shoulder--infact there is no shoulder on that road--plus they hit her at 60mph--if I swerve, I would break as well-since they hit her at max speed limit of the road, To believe this story would make me an idiot. If she was in their shoulder, and they swerve, she has to hit them on the passanger side--but she didn't, they hit her on her drivers side--they admited they hit her in her lane--but then added this story which doesn't make sense We did not know that we could file a wrongful death suit...?? We do not know what happened as we were not there...only the other vehicle and her were there--How do we dispute what we cannot possible KNOW...isn't that the case in auto accidents ?? Its he said she said...
Our family believes it was an accident--we don't want the other people involved to feel like we are blaming them, because we don't--it was raining very heavily and maybe they thought she swerved, there is a bend at the top of the hill, which when you are driving uphill can make you think a car traveling towards you is in your lane, when in fact they are not, there is just a curve, but in heavy rain at 7am one could mistake that--With no witnesses and one person dead my question is what actual legal information can the insurance company go by??? Can they base their decision on speculation or facts--I guess that is my new question--
Posted: Mon Nov 01, 2010 07:48 pm Post Subject:
This information is quite useful, because it proves sleep apnea on this morning could not have contributed to her death--her sleep apnea was treated as it arose over the night
One night on a CPAP device does not cure sleep apnea. But sleep apnea is a condition that does not affect someone while they are awake. Poor sleep due to sleep apnea can result in people being drowsy during their waking hours (same as anyone else who has been deprived of proper sleep).
the insurance company explained it . . . saying it isn't a "covered accident" because her "medical sickness, disease, or treatment..contributed to the accident" -- which they are claiming the accident happened because she swerved, and that her sleep apnea caused her to likely fall asleep causing the swerve
Virtually IMPOSSIBLE for the insurance company to prove. This would be the basis for an insurance bad faith lawsuit. How could they know if she swerved due to falling asleep or because she was frightened by a spider on the windshield. Utterly ridiculous!
if I swerve, I would brake
Unfortunately, this is not about you. You would probably not brake if unconscious.
We do not believe she did because there are no witnesses except the other driver, no skid or tire markes, and how and where her vehicle was hit.. The other driver claims she was all the way in their shoulder so they swerved so they wouldn't collide--there is no possible way she could have been in their shoulder--infact there is no shoulder on that road--plus they hit her at 60mph
It's also not about what you believe, it's about what actually happened. Every state required a traffic accident investigation when a fatality is involved. What does the police report state? Where was the "Point of Impact" -- the exact spot where the collision occurred? On your mother's side of the road or in the opposite traffic lane? That's what's important.
they hit her on her drivers side--they admited they hit her in her lane--but then added this story which doesn't make sense
It certainly makes sense if you didn't want to be sued for wrongful death. But, again, the police report and the testimony (in court or by deposition) of the investigating officer(s) is crucial in establishing the details. Why have you not said anything about this? Even if it was raining, in which case there are unlikely to be any skid marks, the point of impact is still usually evident due to the deposit of car parts, broken glass, plastic, metal at the spot where everything first occurred.
what actual legal information can the insurance company go by?
They can use the police report, the death certificate, and the autopsy notes/report of the medical examiner/coroner. They can also review your mother's medical records. But they also have to be guided by medical science. If there is nothing in the literature that says a person suddenly becomes unconscious due to sleep apnea while awake, how can they allege that it contributed to the accident?
You must obtain a copy of the insurance contract to be able to see the words they are relying on to deny the claim. You should be able to get that from your mother's employer or by written request to the insurance company.
While you are waiting for that, do some basic research into sleep apnea. Get copies of clinical research. Speak to her treating physician about the likelihood that sleep apnea was responsible for her death in a traffic collision. Arm yourself with knowledge!
Can they base their decision on speculation or facts
They do both. The facts are the most important.
An article on sleep apnea at WebMD ( http://www.webmd.com/sleep-disorders/tc/sleep-apnea-symptoms ) states that a "symptom" of sleep apnea may include excessive daytime sleepiness:
Excessive daytime sleepiness can have serious consequences, such as:
* Motor vehicle accidents. Sleepiness may be the main cause of over one-third of all fatal traffic accidents and as many as one-half of all traffic accidents.
Notice that it says "can have" and not "always has" -- who's to say that your mother's fatal accident was the "over one-third" contributed to by sleep apnea or the "almost two-thirds" that are not?
They may speculate that it was a contributing factor, and you may speculate that it was not. That your mother may have had the "best night's sleep of her life" is speculation, unless there is documentary evidence to support it. The "answer" to who's right or who's wrong may rest with the members of a jury panel in a civil trial, and the guess that they make after listening to all the evidence presented at trial.
The point is, for the insurance company to not pay the claim, they have the burden of proof according to the policy language. But by simply denying the claim, they figure few people will challenge them, especially if the cost of legal fees is more than the amount of insurance money available. But to lose such a case in a civil trial can cost them hundreds of thousands of dollars or more in "punitive damages" from their "bad faith" action.
If you believe the insurance company is wrong, you will have to hire an experienced insurance bad faith attorney (one who has actually taken cases to trial with successful outcomes). They may take the case on a "contingency" basis, but will probably require you to pay them if you lose. All that will be discussed in advance, and will have to be agreed upon.
When you get the copy of the AD&D policy, I will be happy to analyze it for you. Send me a PM for information on how to get a copy of the policy to me.
When all is said and done, this is a glaring example of why LIFE INSURANCE is the right choice (none of this discussion would have been necessary) and why ACCIDENTAL DEATH BENEFITS are only worth what one pays for them -- which is not very much.
Posted: Tue Nov 02, 2010 02:43 pm Post Subject:
the point of impact is in her lane--far to the right--there is still indentions in the road as well as debris in the grass even after a year--They clearly hit her in her lane--there is no question about that--My question is if there are no witnesses and all the officer has to go by is the other driver's story as far as the beginning of the accident--the initial swerve--which the other driver claims she swerved, but there is no proof that she did --which is what the insurance company is ultimately basing its decision on--this alledged swerve--the officer on the report states "in his opinion"--and he writes what the other driver claimed--because this is the only story he has-can we talk to the officer and do we need to get something in writing or some legal document from the officer with him stating that his opinion is based on what the other driver claimed happened??--Oh yes when the report was first written the officer had reported that my mother and the other driver were in opposite lanes than what they actually had been and when the news reported the accident, they reported it wrong--the officer had to change his report to get the facts correct-- There are so many things about this accident--even as far as when the two vehicles were in the impound place, which we went to the day after the accident, the other driver's family was removing things from his vehicle and they told us to do the same from our mothers(which I thought was weird--how do you investigate the vehicles if people take things out of them??)--which there wasn't anything to get from my mothers vehicle as it had been destroyed because they had to rip it apart to get her body out. The other vehicle's front was the only thing messed up--
I know all these details do not matter, all that matters to the insurance company is the intial alledged swerve --which no one can prove--do i need to write the insurance company and remind them that no one can confirm or deny this because it was raining and there are no tire marks and the only marking is the point of impact, which is in her lane--so how can they deny her policy on something that could have or may not have even happened??
Posted: Tue Nov 02, 2010 05:55 pm Post Subject:
My question is if there are no witnesses and all the officer has to go by is the other driver's story as far as the beginning of the accident--the initial swerve--which the other driver claims she swerved, but there is no proof that she did --which is what the insurance company is ultimately basing its decision on--this alledged swerve--the officer on the report states "in his opinion"--and he writes what the other driver claimed--because this is the only story he has-can we talk to the officer and do we need to get something in writing or some legal document from the officer
It is now apparent that there are way too many details that have yet to be disclosed here. With each successive post, some little, but important, tidbit surfaces.
What you are asking here is inappropriate for you to collect privately. You obviously are headed to either a "wrongful death" lawsuit or an "insurance bad faith" lawsuit, or both. **Time is running out! Some states have only a 1-year time limit ("Statute of Limitations") on filing such civil actions, others allow 2 years (or longer).**
So if that is the case, you should be interviewing lawyers, not asking insurance agents for our opinions. Your eventual choice of lawyer will determine how the case progresses. At the very least, all of the parties to whom you refer in this most recent post (the officer and the opposing driver) will have to be DEPOSED UNDER OATH -- that's why you cannot do this privately! The transcribed deposition is admissible in court even if the deposed person later dies, become incapacitated, changes their testimony, or cannot "recall" the events at trial.
You've never indicated the value of your AD&D claim. Unless it's for a six-figure amount of money, you may be "chasing a rabbit" (the insurance company) unnecessarily. You could win, but at what cost (time, money, emotions)?
There are so many things about this accident--even as far as when the two vehicles were in the impound place, which we went to the day after the accident, the other driver's family was removing things from his vehicle and they told us to do the same from our mothers
Absolutely nothing strange about this . . . the impound lot does not want liability for anything "missing" at some future date -- like briefcases, telephones, CDs, etc. Nothing in the vehicles would have supported or refuted your contentions as to fault (other than a videotape of the accident).
I know all these details do not matter, all that matters to the insurance company is the intial alledged swerve --which no one can prove--do i need to write the insurance company and remind them that no one can confirm or deny this because it was raining and there are no tire marks and the only marking is the point of impact, which is in her lane--so how can they deny her policy on something that could have or may not have even happened??
This is what you will pay an attorney to do for you. An educated word of advice: Stop spending your time here and find your attorney ASAP!!
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