In Miranda v. Arizona, the Supreme Court of the United States established a formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated. The court ruled that the person in custody must be informed that he/she has the right to remain silent, and that anything the person says can be used against the person in a court of law. What developed from the ruling is the well-known “Miranda Warning”:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Even though the Miranda Warning only applies to criminal suspects, potential personal injury civil litigants should consider the wisdom of remaining silent until receiving the advice of counsel. The alternative is to risk saying something that will harm the civil case.
Fault and damages are key components of every personal injury case. Limiting both is the primary objective of every liability insurance company. Adjusters, investigators, and lawyers are employed to this end from the very beginning of a reported claim. They will quickly reach out for information from witnesses and victims for the purpose of obtaining incriminating and exculpatory evidence to limit their exposure. What a victim says to these people can be used against him/her in and out of court.
(Read this blog, Limited Application of Florida’s Motor Vehicle Accident/Crash Report Privilege, for the confidentiality of statements given to motor vehicle crash investigators.)
The caution addressed above concerns conversations with the at-fault party’s liability insurance company. The injured person is never required to engage in informal conversations with this carrier. However, a different cooperation rule applies with regard to one’s own insurance company. Typically, the insured is contractually bound to cooperate with his/her own insurance company by providing statements (e.g., EUO) and completing paperwork. These carriers include those that provide health insurance, PIP and uninsured/underinsured motorist (UM/UIM) coverage.
Cooperating with one’s own carrier is far from risk free. Coverage can be denied based on information gathered. The most common denial basis is insurance application misrepresentation. (Read, Factors in Florida Insurance Contract Rescission Cases, and see Florida Statute 627.409.) For example, the applicant for car insurance may fail to mention other licensed drivers living in his/her household. This failure, purposeful or not, allows the carry to deny coverage. However, refusal to cooperate is not a viable alternative: failure to cooperate is another common ground for coverage denial.
Every insurance company looks for ways to deny claims and limit payments. The pre-suit fact gathering process can be fertile ground to this end. Unrepresented lay people don’t stand a chance against trained insurance company representatives. This is why legal representation should be enlisted before the communication process begins. Qualified personal injury lawyers will even the playing field.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.