If 2011 has a catchphrase, then it may be, “There’s an app for that!” For many insurance professionals fighting fraud and noticeably exaggerated claims, there is a new application (app) of sorts in the form of social media. Adjusters can use social media as a tool to combat claimants’ allegation of damages. For example, if a bodily injury claimant moans about severe disability and alteration of lifestyle because of an insured event, then social media can provide evidence to either verify or disprove those allegations. It is not unheard of for claimants asserting serious injuries to post Facebook pictures and status updates depicting various physical activities that undermine the credibility of disability allegations. If a claimant or plaintiff is foolish enough to leave his or her social media privacy settings such that they allow virtually anyone to view personal posts, then this becomes a legitimate area ripe for claims investigation and legal discovery.
Social media’s popularity is a mixed blessing for insurance companies and claims organizations. Many managers and executives fret about the time wasted by claims adjusters trolling through Facebook, Twitter, YouTube, or tweaking their online resumes on LinkedIn.
New Causes of Action
Another negative is that social media may actually create new causes of legal action. In the medical liability realm, social media spawns potential liabilities. For example, two Wisconsin nurses lost their jobs after snapping cell phone photos of an X-ray showing a sexual device lodged in a patient’s rectum. Afterward, they posted the pictures on Facebook.
One can easily envision an uptick in liability claims for invasion of privacy and personal injury. Further, employees subject to disciplinary action for using social media could later file employment practice liability claims. Even if such suits lack merit, the legal costs of defending those are substantial.
That being said, even the thinnest pancake has two sides, and the social media pancake is no exception. Certain potential advantages beckon adjusters and claims organizations. The content of some social networking sites creates investigative avenues for adjusters who seek to more aggressively investigate and occasionally contest liability claims against policyholders. (In divorce cases, for example, social media offers a bonanza of new fact-finding opportunities: evidence of infidelity, unfitness for parenting, and so on).
Positives for Adjusters
In one bodily injury claim, a plaintiff asserted that his injuries left him unable to use his hands for anything but minimal activity. Scouring the Web for information about the plaintiff, the defense team discovered that the plaintiff was a prolific blogger. Rather than confront the plaintiff with this fact during depositions, the company’s defense team downloaded all the plaintiff’s blog posts. Further, they tallied exactly the number of keystrokes required to write all of them. (Folks, please remember this the next time your kids ask you why they must learn math in school). At trial, the company’s defense team presented the plaintiff with that number. This significantly undermined the claim’s viability. Once you plant in the jury’s mind the seed of doubt about injuries, the credibility “seed” may grow to impact other aspects of the plaintiff’s claim. Perhaps the claimant did not have the right of way at the intersection. Maybe he did notice the wet condition of the produce aisle floor before traversing all the same.
No “LOL-ing” Over Claim Denials
In one rear-end auto collision, the plaintiff alleged significant neck and back injuries that plagued him for years. During the plaintiff’s deposition, he testified that his injuries affected him, that he lost time from work, and would need medical treatment often to address his future neck and back discomfort.
About 30 days before trial, plaintiff’s counsel received from defense counsel materials that counsel intended to share with the jury. Among these were several photos of the plaintiff snowboarding. The materials included a CD containing a video of the plaintiff launching his snowboard off jumps at breakneck speed. Investigators had downloaded the video and photos of the plaintiff from his Facebook and MySpace pages.
At this point, plaintiff’s counsel had spent thousands of dollars working on the case and preparing it for trial. The insurance adjuster explained to plaintiff’s counsel that she had previously posted a much higher reserve on the case but that she now no longer believed in the claim, because of the material mined from the two networking sites.
So, the point is this: Adjusters should be both aware of and able to skillfully apply information that can be gleaned from social networking sites. Increasingly adjusters and SIU professionals are not just stopping at an Index Bureau check on claimants. A Google search is now part of their arsenal, along with checking Facebook, Twitter, and MySpace for evidence that may very well compromise the collectability of a bodily injury claim.
The oh-so-popular TV commercial tagline says, “What happens in Vegas stays in Vegas.” That may be true about that gambling and bachelor party destination. It is, however, certainly not true with regard to postings made on social networking platforms. No ERASE key readily exists on the Internet. That can be problematic if one is caught partying too heartily at the annual state claims convention, but nevertheless useful in combating exaggerated or fraudulent claims. The latter is, as Martha Stewart might say, “a good thing.”