“I Looked Up”: How Three Words in a Recorded Statement Became 20 Percent of the Blame

Years ago, a lady came to me after a car wreck. Before she hired me, she had agreed to give a recorded statement to GEICO.

The wreck was not hard to understand. She was driving down La Vista Road in Atlanta. The other driver was pulling out of a bank and failed to yield while entering the road.

Even so, GEICO was blaming her for 20 percent of the fault. When I looked into why, I found the reason in her recorded statement. It came down to three words.

This post is about those three words, why insurance companies want your recorded statement, and what to do when an adjuster asks for yours, especially when your child is the one who was hurt.

What she said, and what GEICO did with it

In her statement, she said, “I looked up,” and saw the other driver’s vehicle just before crashing into it.

In her mind, that was an innocent way of saying she became aware of what the other driver was doing. People talk that way every day.

GEICO heard something else. GEICO said she must have been looking at a coffee, or at her phone, or fiddling with the radio in her car. GEICO said she was being inattentive, and it assigned her 20 percent of the blame.

The driver who pulled out of the bank had failed to yield. Georgia law says a driver entering a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on that roadway. O.C.G.A. § 40-6-73.

It took almost a year to get GEICO to accept 100 percent responsibility. Almost a year, all because she agreed to record a statement and GEICO twisted her words.

Why the insurance company wants your statement

The adjuster may be friendly. The adjuster may say the statement is routine, and that it will help move your claim along.

Understand what the statement is. The other side’s insurance company is deciding how much it can avoid paying, and you are being asked to help.

Georgia divides fault by percentages. Under O.C.G.A. § 51-12-33, if the injured person is found partly at fault, the damages are reduced by that percentage. If the injured person is found 50 percent or more at fault, there is no recovery at all. On a $100,000 claim, 20 percent is $20,000. I explained why every percentage point matters to an insurer in an earlier post.

A recorded statement also lasts. Your own statement, offered against you, is an admission, and the hearsay rule does not keep it out. O.C.G.A. § 24-8-801(d)(2)(A). You will have forgotten the exact words. The insurance company will have them on tape.

Think about when they ask. It is usually within days. You are hurting, or your child is. You have not seen the police report. You have not seen the photographs. You may be on pain medicine. You do not know yet what you do not know, and you are being asked to lock in your story anyway.

When your child is the one who was hurt

Parents are in a worse spot than the lady in my story, for three reasons.

You already blame yourself. I wrote about the phone call parents get, and the question at the heart of it: “Where were you?” Every parent says things like “I only looked away for a second.” They are grief. In a claim file, they become admissions.

You do not yet know how badly your child is hurt. “He seems fine” is what a loving parent says on day three. It may also be what a claim file says on the day your child’s symptoms get worse. Head injuries in children are often missed at first. So do not guess about your child’s injuries for an insurance company.

You may be asked about things that now reach the jury. After SB 68, seat belt evidence can come in. Expect the adjuster to ask who was buckled, and how.

Also remember that there are two claims, one belonging to your child and one belonging to you. What you say can be used against both.

Do not let the adjuster talk to your child

Do not put your child on the phone with an insurance company. That goes double for a teenager.

A teenager who has just been in a crash is scared and wants to be polite. Teenagers are often unfairly blamed for a wreck, and sometimes they do not know how to communicate the truth of what happened. “I looked up” is exactly how a 16-year-old talks. So is “I guess,” and “I think so,” and “I’m not sure.”

Whether a child can be charged with fault at all depends on age. Under Georgia’s tender years doctrine, very young children cannot be. A teenager behind the wheel should expect to be judged like any other driver.

Everyday words that can be twisted

There is nothing wrong with any of these sentences in ordinary conversation. Here is how they can sound to someone looking for a percentage.

• “I looked up.” So where were you looking before?
• “He came out of nowhere.” So you never saw him. Why not?
• “I didn’t see her until the last second.” So you were not keeping a proper lookout.
• “I think I was going about 40.” So you do not know how fast you were going.
• “I’m sorry.” So you admit it was your fault.
• “I’m okay.” So you were not hurt.
• “She seems fine.” So your child was not hurt.

You cannot prepare for this by choosing your words carefully. Nobody talks carefully in a normal conversation, and a person who has just been through a wreck least of all. The lady in my story was telling the truth. It did not protect her.

You do not have to give one

The other side’s insurance company. You have no duty to give a recorded statement to the other side’s insurance company. You do not work for it. It does not represent you. Saying no is not rude, and it is not suspicious.

Your own insurance company. This one is different, so do not confuse them. Your own policy is a contract, and it likely has a clause requiring you to cooperate with your insurer. Failing to cooperate can put your own coverage at risk, including the uninsured motorist coverage that may be the most valuable coverage in your case. So report the wreck promptly, read the policy, and if your own company asks for a recorded statement, call a lawyer first and get the request handled properly.

The police. Report the crash and get the report number. Never lie to anyone about what happened.

Declining a recording does not mean hiding the truth. Your lawyer needs the whole truth, the good facts and the bad, and a lie will hurt your child’s case far more than the truth ever could. The point is who hears your account, when, and with what facts in hand.

Treat every call as if it is being recorded, even if nobody says so. Georgia generally allows a person who is a party to a call to record it. O.C.G.A. § 16-11-66(a). That cuts both ways. I have told parents that when a homeowner admits fault, get it on a recording or in writing, because stories change.

What to say when the adjuster calls

You can give your name, confirm that you received the call, and stop there. Something like this works:

“I’m not going to give a statement. Please send me what you need in writing. My lawyer will be in touch.”

If you have not hired a lawyer yet, you can still say you are not giving a statement today and that you will call back after you get advice. Do not let anyone talk you into “just a few quick questions.” That is the statement.

The same goes for anything you are asked to sign. Do not sign a medical authorization or a release before you get advice. I have written about what happens after a parent signs a release in the middle of all this.

If you already gave one

Do not panic. A recorded statement can hurt a case without ending it. The lady in my story still got GEICO to accept 100 percent responsibility. But it took almost a year that it never should have taken, and she had to hire an attorney (me!) to get it done.

• Do not give another statement to try to fix the first one.
• Tell your lawyer right away, and tell your lawyer everything you remember saying.
• Ask for a copy. Once a lawsuit is on file, a party may obtain her own prior statement without the showing normally required. O.C.G.A. § 9-11-26(b)(3). Your lawyer will want to know exactly what is on that tape, because that is where I found the problem in her case.

What I tell parents

• Do not give a recorded statement to the other side’s insurance company before you get advice.
• Do not put your child on the phone with an adjuster.
• Do not guess about speed, distance, or injuries. “I don’t know” is an honest answer when it is true.
• Report the crash to the police and report it to your own insurance company.
• Write down what happened while you remember it, and give it only to your lawyer.
• Do not sign anything until a lawyer has read it.
• Talk to a lawyer first. The call costs you nothing. I have seen what that recording can cost.

She looked up. That is all she said, and it took almost a year to undo.

So beware.

Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.

If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.