Convince the carrier this is a liability case
The first step in establishing the reasonableness of a demand is to convince the insurance company (and a judge/jury who may ultimately read this letter in a subsequent bad faith case) that liability is either clear or reasonably clear, such that any reasonable insurance company would pay the policy limit to avoid financial ruin for the insured. This includes attaching copies of police reports, investigation reports, witness statements, the identities of witnesses by address and phone number so the insurance company can interview them, photographs or videos, and anything else that proves a prompt settlement is prudent and reasonable. Keep in mind, if you are sending a pre-litigation demand letter, it’s likely the insurance company is either unaware or just barely aware of the existence of the claim and has not retained counsel or investigators. Make it appear as though settlement is a no-brainer.
Include solid evidence of the complete array of your damages and include your total, undiscounted medical bills
Your demand should include medical reports and records, X-rays if applicable, wage loss verification, business income records, photographs of injuries or damages, and anything else a reasonable insurance company would need to evaluate your claim. Also, you are entitled to compensation for your full, undiscounted medical bills, regardless of what your health insurance carrier paid. (You should submit your medical bills related to the car accident to your health insurance company for payment.) For example, if you went to the emergency room and your total charges were $7000, but your health insurance carrier received a contractual adjustment from the hospital and only paid $1300, the adjuster will likely try and tell you that they can only consider the $1300 your health insurance paid when making a settlement offer. This is not true. The settlement offer for your claim should be based on your total, undiscounted medical charges of $7000. Tennessee adheres to the collateral source rule, which permits injury victims to prove and recover medical expenses, whether paid by health insurance or not (Donnell v. Donnell, 220 Tenn. 169, 415 S.W.2d 127, 134 [1967]). Tennessee law allows injury victims to use full, undiscounted medical bills to prove their medical expenses instead of the discounted amounts paid by their health insurance company. The at-fault driver and their liability insurance company should not benefit from the fact that you have health insurance which received a contractual discount on the total charges.
Set a deadline to accept the demand
Your demand should include a deadline, and it should be highlighted in bold lettering so there is no confusion. Although, it is important to make the deadline reasonable based on the facts of the case and the amount of supporting documentation that the adjuster will need to review. If negotiations have been ongoing for months and the carrier already knows everything it needs to know, a shorter deadline may be appropriate. Insurance companies usually complain the deadline is too short and they need more time. In anticipation of this excuse, it is advisable to address the subject up front. Consider including a procedure to request an extension in the demand letter. Tell the adjuster that no reasonable request for more time will be rejected; however, any request must be supported by specifics. The insurer must state precisely what additional facts, witnesses, authorities or information the insurance company needs that cannot be accessed by the original deadline. Tell the carrier that generic pleas of “I need more time” without more details will be rejected. This preemptive move communicates fairness on your part, but also forces the insurer to justify why it couldn’t complete its evaluation of the claim sooner.
Proper address and delivery confirmation
It seems like common sense, but make sure the demand package is sent to the correct address and actually arrives. Delivery confirmation via email or facsimile are advisable.
Catch-all
It’s a good idea to complete the demand letter by asking the insurer to contact you immediately if for any reason the carrier cannot accept the demand by the deadline because the demand package is missing important or crucial information.
Don’t make a specific settlement demand
Unless you really know what you are doing, making a demand is a mistake. You are either going to make a settlement demand that is too high or too low. Either is a catastrophic mistake. You can mitigate your risk by letting the insurance company make the first move. I usually say something to the effect of “please make a reasonable settlement offer within 15 business days.” While making a settlement demand for a specific amount before receiving an offer is a bad idea in most cases, demanding the policy limits makes sense if the value of the case is in the same ballpark as the policy limits.
Require the adjuster to respond to your demand in writing, preferably by email
This is a tip that claimants can use throughout their negotiations with the adjuster. We have found that adjusters are reluctant to use some of their shadier tactics when they know there is going to be a paper trail. Check out our article, “No, the Insurance Adjuster is Not Your Friend,” for more helpful information.
