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Posted on 05-20-2013
Who but an insurance company would be arrogant enough to seriously try to contend that there is a relationship (a scientific correlation no less) between the amount of visible property damage sustained by a vehicle, made of metal, plastic and glass, and the seriousness of injury sustained by its human occupant composed of flesh and blood?
Every day, however, insurance company lawyers are making the argument, in thousands of courtrooms across this nation, that injury victims could not possibly have been injured in auto accidents because little or no visible property damage was done to their vehicles. Every day thousands of insurance adjusters are making the same claim, in hundreds of thousands of living rooms across the country, to countless injury victims, in an effort to justify paying them little or nothing - despite the fact that they were injured through no fault of their own.
The frightening thing is that the insurance companies are getting away with it! For the first time, people who were legitimately injured in rear-end collisions, and other cases of clear-cut liability, are losing - being denied the reasonable compensation they are entitled to ― because of the myths fostered by the insurance industry about "low impact" auto accidents and those who were injured in them.
Where do those myths come from? How do they get perpetuated? The answer is insurance companies. Companies, individually and collectively, have literally spent millions of dollars over the past several decades to convince the public that most people who make insurance claims, especially personal injury claims, are fakes, frauds and cheats who are out to defraud insurance companies out of billions of dollars and in doing so are directly responsible for the outrageously high insurance rates that we all have to pay.
In support of that proposition, insurance companies rely upon dubious statistics generated by themselves, their trade associations or supposedly-independent "think tanks" they have hired. To dramatically pump-up those statistics they include, not just provable, or confirmed, cases of fraud but, "suspected" cases as well and, then, to further improve those numbers, they include "exaggerated" claims as well. What constitutes a case of "suspected fraud"? Anything they want! What are "exaggerated claims"? Any claim where the amount initially sought in negotiations is more than they would like to pay!
Insurance companies do not make money selling insurance. The sale of insurance is merely the faucet they turn on to generate a never ending stream of income which they then invest in blue chip stocks or prime real estate that yield handsome profits. Yet, those profits seldom, if ever are factored in when it comes to determining what you and I have to pay in insurance premiums. Instead, they whine that because of all the false, and fraudulent, claims they have to pay, they are actually losing money when you compare the amount of premium dollars taken in with the claims dollars paid out.
Because most of us do not know this, and most state agencies that regulate insurance are shamelessly controlled by the insurance industry, we pay through the nose for insurance coverage that most of us are afraid to use for fear that our rates will go up or our coverage cancelled!
How do the myths that most accident victims are fakes, frauds, crooks, and that their rampant dishonesty is the cause of our outrageously high insurance rates, get perpetuated? By every means possible - from the million dollar ad campaigns that are paid for by the insurance industry and adorn most of our national magazines, to the political rhetoric of politicians whose campaigns are paid for by insurance companies, to the insurance company lawyer who, despite losing the case, regales jurors in the hallway after the trial about how they were duped, by the slick-talking plaintiff’s attorney, into awarding unjustified damages to a crook despite the insurance company’s best efforts to expose the "obvious fraud."
For the insurance companies, it is but a small, progressive, step to add to that litany the proposition that because the injured person’s car sustained little or no visible damage they could not have possibly been injured in the accident. It is a fallacious argument but one that has great appeal, and the appearance of logic, to the public generally, and jurors particularly, who have little or no insight, or experience, in insurance, law, medicine or accident reconstruction. As in Galileo’s time, who could possibly doubt the obvious, and irrefutable, fact that the sun clearly rotates around the earth.
It rises in the east and sets in the west every day. Just look for yourself!
What is a "Low Impact" Accident ?
When I first began my career as an insurance adjuster, a "low impact" accident was generally one in which there was little or no visible physical damage to the vehicle. At best, there might be a dime-sized dent in the bumper and the estimated cost of repair was under $50.00. Over the years, with the encouragement of the insurance companies, the concept has expanded from $50.00 to $100.00, $250.00, $500.00, $1,000.00, to $2,000.00 and more. Today, it is whatever the insurance company says it is!
I recently had an insurance adjuster argue to me ― with a straight face ― that my client could not have possibly been injured in a "low impact" accident in which his car had sustained only $5,000.00 in property damage! Why think small?
Understanding the Fallacy of the Basic Concept
Although it seems to have escaped the insurance companies, most of the thinking world understands, and appreciates, that for any valid comparison to be made the things being compared, or correlated, must, in fact, be comparable. We instinctively know that apples must be compared to apples, oranges to oranges, and that it is inappropriate, even senseless, and patently dishonest, to compare apples and oranges. At this level, the best admonition is "Get real!"
If one is going to rely upon the amount of damage sustained by a vehicle, in order to make inferences about such things as human injury, why should we be limited to considering only visible damage and be precluded from considering hidden damage such as that occurring underneath the vehicle, or to the engine, or that inside the trunk. That makes no sense. Aside from its prejudicial effect, and obvious appeal to bias, there is no legitimate reason to limit ourselves to visible damage only.
Further, if truth, or simple honesty, is any consideration, we must consider what, if any, logical relationship, or potential correlation, there is between such disparate things as an inanimate object, like an automobile, and a sentient being, such as a human? To what extent, if any, are they alike and to what degree may any perceived similarities be legitimately compared and used as a basis for making reasonable inferences about either? Except in the dollar-deluded minds of insurance executives, probably none!
What similarities do metal, plastic and glass share with human tissue, bone, muscle, ligaments, tendons, nerves, and to what extent may any similarities be used as a basis for a hypothesis about human injury in auto accident cases? Other than the fact that metal, plastic and glass can cause human injury, when they come together with those human elements, probably not much!
What legitimate relationship, if any, exists between the dollar amount of property damage (involving parts, labor and materials) and the dollar amount of the medical bills of a vehicle’s occupant? To what extent is an auto damage estimate a reliable predictor of the nature of the injury sustained by a vehicle’s occupant, or of the kind and amount of treatment required, or of the cost of that treatment? Considering that some people can suffer a herniated disc just bending over to tie their shoes while a professional racer driver may total-out a Ferrari at 180 miles per hour and walk away unscathed, probably none!
We are basically talking about what scientists, and statistical analysts, call "negative correlation", i.e. the absence of any logical, or relational, relationship!
Exploding the "Big Myth"
There simply are no scientific test results, or statistical studies, that support the insurance industry’s proposition that "no property damage = no injury.” Neither are there any scientific test results, or statistical studies, that support the corollary hypothesis that "little property damage = little injury" while "big property damage = big injury.” Simply put, it ain’t necessarily so! Believe me, if those propositions were scientifically true, every insurance adjuster in the country would be walking around with those test results tattooed on their foreheads.
Getting Oriented and Understanding "The Game"
The questions that arise in even a relatively simple "low impact" case can be incredibly complex ― both legally and medically. However, before we undertake to deal with those more sophisticated issues, we need to get oriented and understand a few "basics" of the game.
Whether a person was injured, a "low impact" accident is always a matter of opinion about which reasonable people may legitimately differ. That’s how the insurance companies get their foot in the door and are able to raise the issue even though, as we have seen, there is no scientific basis for their basic premise that "no property damage = no injury" or that "little property damage = little injury.”
Further, because most of us; lawyers, adjusters, judges, arbitrators and jurors included, have little, or no, knowledge or expertise regarding the mechanics of low impact accidents, and, thus, no basis for formulating informed opinions of our own, the law generally permits, and in some instances requires, the use of expert witness testimony, in the form of expert opinion, from "experts", who do possess such knowledge and expertise, in order to assist us in answering the critical questions posed by such accidents.
It is important to understand, however, that the value of such expert opinion depends upon the background, education, experience and expertise of the particular expert(s) involved. In short, all experts are not created equal. There are, for example, an incredible number of "ex-cops" who are hired by insurance companies and passed off to be "accident reconstruction experts.” All too often their only qualifications are that they once attended a weekend class on accident investigation, or accident reconstruction, work cheap, and have no qualms about parroting the company line that "no property damage = no injury."
Regrettably, accident reconstructionists are not licensed, or certified, and anyone who can manage to print-up a business card on his home computer can claim to be an expert. As we will also see later, the area of "low impact" auto collisions is an area in which insurance company sponsored "junk science" not only abounds but, tends to predominate. It is an area of human knowledge where, unfortunately, intelligence, integrity, high standards, impeccable credentials and rigorous critical thinking are often lacking.
Given the relatively high standards set by the law, for the utilization of expert opinion, I never cease to be amazed at the caliber of the people who are accepted as "experts" by courts and the absolute nonsense that is admitted as "expert opinion.” That occurs principally because courts frequently "cop‑out" and allow such garbage in on the theory that the flimsy credentials of the expert, and lack of scientific support for the expert’s opinion, go to the question of the "weight of the evidence" (i.e., how much credence it has) as opposed to its legal admissibility.
Any serious inquiry into the causation of injury in "low impact" accidents requires a multi-disciplinary approach, typically, involving such diverse bodies of knowledge as medicine, physics, biomechanics and "real" accident reconstruction. Since one individual is seldom an expert in all three of those areas, it is often necessary to involve, not just one expert but, at least, three: a doctor (usually an orthopedic surgeon), a biomechanical engineer and a legitimate accident reconstructionist.
Because such experts can be incredibly expensive insurance companies often try to do it "on-the-cheap" by hiring an "ex-cop" and passing him off as a generic, or all-purpose, "low impact" expert. Needless to say, there are no truly generic, or all-purpose, experts in the field. At least, I have never encountered one in over 30 years of practice. As a result, most such insurance company "experts" are easily exposed as unqualified "hacks.”
The problem for accident victims, of course, is that most do not have the money to hire any such experts and because "low impact" cases tend to be high-risk cases few attorneys are willing to advance, or "front", that expense for the client.
While there certainly are occasional exceptions, in the typical "low impact" case, we see the insurance company presenting a grossly unqualified "ex-cop" as its expert while the injured party, who cannot afford any expert, is reduced to trying to rely upon the cross-examination skills of their attorney to discredit the insurance company "expert." That is a hard way to go and a major reason that so many "low impact" cases are lost.
If you are the injured person in a "low impact" case, and are serious about wanting to win, you need to make a commitment to winning by hiring the best team of experts that your lawyer can assemble and be prepared to pay them top dollar for their unique expertise! The insurance companies are betting that you will not make that commitment. The secret of their success generally is not that their experts are better but, simply, that they have, at least, one (as poor as he may be) while you have none!
To complete your basic orientation, you need to, at least, be aware of the fundamental falseness of another "low impact’ myth. Insurance companies like to carp about the fact that today’s cars are better built to withstand collisions (of five miles per hour or less) and, thus, are safer. The idea that new cars are built to "absorb" the energy generated by an impact rather than it being absorbed by the vehicle’s occupant is fundamentally false.
While I would not recommend trying this at home, at least, picture in your mind one of today’s automobiles, composed primarily of light-weight metal, plastic and glass, being hit by a 1955 Chevy, a vehicle basically built out of cast iron, and guess which vehicle, and its occupants, survive! You will be lucky to even find all of the bits and pieces of today’s "safer" car.
For the most part, and with the exception of seat belts, air bags and certain kinds of head rests, the "safety improvements" of today’s vehicles, such as "impact absorbing" bumpers, have little, or nothing, to do with occupant safety. They are the result of intense insurance industry lobbying of auto manufacturer’s to reduce auto repair costs by replacing expensive cast metal parts with cheaper disposable lightweight metal and plastic components that crush, or give way, easily upon impact and can be more economically replaced, or exchanged-out, when damaged rather than having to be physically repaired. In other words, the purpose of such devices, as the “impact absorbing” plastic bumper, is to save insurance companies money, not save the vehicle’s occupants!
A further word or two on those "impact absorbing" bumpers: They do not "absorb" the impact or the energy generated by a collision at all. First, they generally are built to "absorb" only a five mile per hour impact. Second, a five mile per hour impact will, typically, crush their interior "impact absorbing" plastic material rendering them incapable of absorbing any energy generated by an impact in excess of five miles per hour. Third, scientific impact studies seem to indicate that whatever energy is generated by a collision is not truly "absorbed", or "stopped", by the "impact absorbing" bumper at all but, rather, is transmitted forward where, after being multiplied several times, it is, ultimately, absorbed by the vehicle’s occupant(s)! So much for "impact-absorbing" bumpers. Bottom line: "impact absorbing" bumpers, don’t!
Understanding the Basic Theories And Terminology
The Significance of "Delta V": The heart of the insurance companies’ argument that a vehicle occupant could not have been injured in a "low impact" collision is the "Delta V Myth" and the premise that if the Delta V of the car struck was less than five miles per hour the occupant of that vehicle could not have been injured.
A very "scientific" mathematical formula is employed and usually accompanied by a considerable amount of "scientific" hoopla and "scientific" jargon intended to impress one and all. Don’t be! It ain’t rocket science.
Definition of "Delta V": Basically, "Delta V" refers to change of velocity, i.e. speed. In the classic rear-end collision a vehicle is stopped and sitting still at a stop light when struck from behind by another vehicle. The force of that impact immediately catapults the struck vehicle forward accelerating it forward from zero miles per hour to "x" miles per hour. That accelerated speed, or change in velocity, of the struck vehicle (caused by it being struck) is its "Delta V.” It is an instantaneous occurrence in which the two cars make contact and, typically, bounce off of each other. It is all over within a matter of milliseconds.
During that instant, both vehicles experience Delta V. The car struck gains speed and experiences a positive Delta V while the car that hit it loses speed and experiences a negative Delta V. Here, we need to watch out for the razzle-dazzle or what Muhammad Ali use to call the "ropadope"; the fancy distracting footwork of the insurance company’s expert witness.
Depending upon the relative weight of the two vehicles the car doing the hitting can lose more speed than the vehicle it struck gains and thus end-up experiencing a greater Delta V than the vehicle it struck. The lighter vehicle will always experience the greater Delta V regardless of whether it is the one that got hit or did the hitting! Insurance company experts like to exploit that phenomenon, whenever they can, to argue that their driver, who was not injured, was actually subject to a greater Delta V than the occupant of the vehicle that was struck and who is claiming to be injured!
The answer to that argument is that the Delta V forces are applied differently to the two drivers! While the body of the driver of the car that caused the collision may be thrust forward by the impact, and experience some potentially harmful flexion of the neck, that motion is not the same as that experienced by the driver of the that was struck whose head, neck and spine are flexed in far more complex ways that have a greater potential for causing injury. In short, the biomechanics for the two drivers are simply different.
Because the crux of the insurance company argument is that the Delta V experienced by the occupant of the struck car is less than five miles per hour ― which under their theory means that the occupant could not have been injured ― there is a tendency for insurance company experts to play a numbers game in an effort to manipulate the occupant’s Delta V below five miles per hour and into the "no injury zone.” They may, for example, seize upon factual variations of how the collision occurred such as pointing out that the injured occupant of the struck vehicle had their foot on the brake at the time of impact, a factor that might reduce the occupant’s Delta V figure slightly.
Definition of "Low Impact": Although, as we have seen, insurance companies are constantly expanding the definition of what constitutes a "low impact" collision, within the community of expert witnesses, the accepted definition is generally a three-pronged one involving a crash in which energy is conserved, the Delta V is ten miles per hour or less, and the closing speed between the striking car and the struck car is less than 10-15 miles per hour.
Definition of "Closing Speed": Again, however, we have to be careful not to be razzle-dazzled by the insurance company expert who may play games with the "closing speed.” Closing speed refers to the relative difference in the speed of the two cars at the time of impact―not their absolute speed. Example: if the striking car is traveling 70 miles per hour when it rear-ends the struck car, which is traveling at 60 miles per hour, the "closing speed" of the two cars is ten miles per hour.
Undermining the "Delta V" Theory: Since today most cars can survive a six mile per hour Delta V without sustaining any visible damage, the presence of any visible damage suggests that the vehicle was subjected to a Delta V greater than the magic five miles per hour which the insurance companies insist is the minimal threshold for injury!
Where Did the Idea of a "Delta V" Threshold Come From? In a nutshell, it is the invention of an insurance company! The ultimate conclusion of the human study crash tests , funded by State Farm Insurance , was that most whiplash victims are fakes, i.e. that a properly seated, reasonably healthy, person, using a properly adjusted head rest, should not sustain any "serious" neck injury in rear-end collisions where their Delta V was under five miles per hour.
Interestingly, even some of the employee-subjects, who participated in this rather flawed and biased study, reported some neck pain and soreness although, in the eyes of the researchers, it did not constitute "serious" neck injury.
Nevertheless, the insurance company had what it wanted ― an arbitrary magic number which would allow it to argue that any vehicle occupant, who claimed to have been injured but had a Delta V of less than five miles per hour, was an obvious fake and a fraud!
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