The Adventure of Subrogation Investigation

Mr. Sherlock Holmes – You could not possibly have come at a better time!” the claims adjuster exclaimed. “This vehicle accident is a typical ‘he said, she said’ situation. Both drivers claim to have had the green light and there appears to be no way to prove which driver was at fault – it is an unsolvable case!” Mr. Holmes scoffed raising just an eyebrow, “Unsolvable?”

Sherlock HolmesOne of the appealing aspects of working in the subrogation industry is that cases come in all sorts of shapes and sizes. Some involve clear liability, others involve a very complicated piece of machinery, but no case sticks out more than those darned, “he said, she said” cases. You begin handling these files just like any other: gather the necessary documents and call your insured to get their statement. Your insured is adamant that it was the other car who ran the red light. You send your demand letter and quickly receive a denial letter outlining that their driver has stated that YOUR driver was the one who ran the red light. You check the police report which just never seems to be helpful enough. The reporting officer showed up after the accident, took the statements of each driver, and was unable to determine liability. No citations issued. Stress not – before you consider this to be a dead end and offer to split the damages 50%/50%, there are several steps we can take to channel our inner “Subro Sherlock.”

Although police reports may not always be the most helpful, they do provide a great starting point. They are the first and best place to look to get a quick understanding of the facts, get a list of the party’s (including insurance information), and to see if there were any eyewitnesses to the accident. They provide the exact location of the accident down to the precise distance from mile markers and other landmarks. They document weather, road conditions, lighting, and other important factors. And they often record things that witnesses say which can be admissible in court as an admission against interest. If you are lucky, the police report may also lead you to independent witnesses who can help your case.

Being able to identify an eyewitness is the best way to bring a case out of the “he said, she said” uncertainty. Give that witness a call, explain who you are, and simply ask for them to retell you the facts as best they can. If the witness’ facts are favorable, proceed with getting a written or recorded statement. If the facts are unfavorable, well, then you can relish in the fact that you can cease further investigation efforts on a losing file.

Unfortunately, most eyewitnesses are never found or even discovered. If you suspect that there likely is a witness, but none were listed (e.g., the accident occurred downtown, or near a store), consider issuing a subpoena to a nearby business for any receipts created around the time of the accident. This will create a list of potential witnesses you can follow up with and ask if they are able to paint a picture of the accident. It is also wise to ask any surrounding businesses to produce any surveillance footage that may have captured the accident. Obtaining video footage of an accident is the best way to get the other party to agree on the facts.

More and more commonly, vehicles are equipped with dash cams which automatically start recording when a vehicle gets involved in a car accident. Ensure that you are reaching out to your insured to obtain this footage if it is available. Rental vehicles often come with dash cams and many commercial trucking companies require their drivers to have a dash cam equipped. Obtaining this footage can be a quick way to resolve case.

Another party who you can consider reaching out to and requesting evidence from is the law enforcement agency who responded to the accident. You may request any documents, photos, investigation notes, reports, body cam, dash cam, and potentially drone footage from the law enforcement agency via a public record request. Some law enforcement agencies are even beginning to use drones for their accident investigations. The use of drones, or unmanned aircraft systems (UAS), in law enforcement and accident investigation has been on the rise over the last five years as drones have become more readily available. Law enforcement agencies who have deployed drones say there are many benefits associated with using these devices. But such footage must be specifically asked for. Your experience and success with these public record requests may differ largely depending on the state and government agency you are dealing with. Some are more than happy to provide these documents, while others are more of a closed book and may require subpoenas.

If you are entering into settlement negotiations with the responsible third party or its insurance company, it is important to become familiar with the accident scene. There is perhaps no tool greater to our subrogation investigation than Google Map’s Street View. Being able to digitally walk through an accident scene is not only cost effective, but it also allows us to imagine the actions that a reasonable driver would have taken and relive the accident from both driver’s perspective. Get familiar with the signs along the road and painted on the street (is it a passing lane or left/right turn only lane?), identify any objects that could potentially block the view of an oncoming driver, etc. Use Street View to place yourself in the shoes of both drivers to determine the most likely cause for this accident. Be sure to observe the date the Street View was recorded. You may get lucky as we did in one case where a tractor trailer was accused of parking on the shoulder of the road and pulling out in front of our client’s insured. The local third party claimed that trucks never use the shoulder for that purpose, but the Street View we captured showed three trucks parked on the shoulder as the Google Street View vehicle drove past. One of them was the third-party vehicle. You can also time travel with Google Street View. By default, Street View automatically shows the most recent imagery. In the top left corner, it tells you the date it was captured by Google. If you also see a clock icon next to this date, it means you are in luck… you can view images from previous photography sessions. You may be able to find construction conditions or other hazards captured in older photos.

Subrogation InvestigationThe largest issue we face when investigating these types of claims is that we do not have many facts. You must use tools like Google Maps to take advantage of the few facts you do have. Sometimes this can be more faith than science, but when negotiating these types of claims, having a strong faith in your claim can sometimes be enough to procure a settlement. For instance, being able to determine the crosswalk traffic symbol can be a used to determine which driver had the green light. If you can show that the crosswalk sign was green heading north, you can also show that the driver heading north also had a green light. Witnesses sometimes are unable to recall what color the stoplight was but do remember that they had a green walk sign while crossing the intersection. In a recent case we handled, both drivers claimed to have the green light, but Google Maps showed us that a building on the corner had a surveillance camera. We requested this footage even though it failed to show the intersection or the streetlights in question. However, the footage did capture a green reflection of the crosswalk symbol in a window. Since, we could show that the crossing symbol was green – we could also determine the color of the streetlights. As Sherlock Holmes is famous for saying, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” Case closed.

Another great resource are weather reports. As any driver knows, bad weather causes bad road conditions increases the likelihood of an accident. Poor weather conditions can be to blame for running a red light due to hitting the brakes and sliding through the intersection. If you use the weather information in concert with Google Maps Street View, perhaps you can argue that due to the downhill nature of road leading into the intersection, it is likely that the adverse driver was traveling too fast for conditions and slid into the intersection causing this accident. The more you can support your position with these types of facts, the settlement offers will begin to appear.

In the contemporary 2019 American mystery film “Knives Out”, Daniel Craig (of James Bond fame) plays Benoit Blanc, a world-famous relentless private detective anonymously hired to solve the murder. When asked how he planned to solve the murder, he gave the perfect description of tenacious subrogation investigation:

Most people dig. They rifle and root; truffle pigs. I anticipate the terminus of gravity’s rainbow, which describes the path of a projectile determined by natural law. I observe the facts without biases of head or heart, stroll leisurely to its terminus, and the truth falls at my feet. Be it cruel or comforting, this machine unerringly arrives at the truth. That’s what it does. It reveals the inevitability of truth. The complexity of the grey lie not in the truth, but what you do with the truth once you have it.

Some of the most important investigation tools are basic steps you are likely already taking when you begin handling a new insurance claim. Obtaining the police report, taking photos of the accident scene and of the damaged vehicles (you can never have too many photos), taking statements of the driver, sending out evidence preservation letters, and so on. The thoroughness of your early investigation efforts will have the greatest impact on your ability to successfully resolve a claim down the road. This is because as time goes on, witnesses become harder to track down, they tend to forget small but important details, evidence gets cleaned up or disposed, surveillance tapes get deleted, etc. Save your future self the trouble and go through the steps of a thorough investigation during the beginning of a claim. You will thank yourself when your subrogation investigation efforts make proving a case elementary.

If you should have any questions regarding this article or subrogation in general, please contact Lee Wickert at [email protected].

Lee R. Wickert
Associate Attorney

Lee R. Wickert is an insurance litigation associate in the Austin, Texas branch of Matthiesen, Wickert & Lehrer, S.C. Lee’s practice areas include insurance litigation, subrogation, workers’ compensation, health insurance and ERISA, automobile insurance, property and casualty, and insurance coverage. Lee is licensed to practice in Texas and Wisconsin.