July 2009 Archives

You did the responsible thing and bought life insurance for your family.  One would think that the life insurance company will do the right thing and pay when the claim is made. Not necessarily:

In the case of Heath Ledger, the trustee for his estate was forced to file an action against the insurance company for failing to pay on a $10M insurance policy purchased by Ledger. The life insurance company had been delaying payment while it investigated the possibility that Ledger committed suicide or failed to disclose certain information about his mental health when he originally applied for the policy. The action has since been settled out of court.

Most people lack the experience and foresight to know that they should document their communication or conversations with insurance agents and claims adjusters.   This can create a situation where the insurer may claim that they were not advised of medical conditions which would affect the policy risk.

If you are buying insurance, be sure to detail all of your medical conditions in your application if it requires it.  You should also document all correspondence, email and telephone conversations with the agent and any other person who is related to the insurance company who talks to you when you are about to purchase a policy.    Detail all of the medications which you are taking or have taken in relations to your medical condition and disclose it to the agent and in the application.   In the absence of a detailed record of all the information provided to the insurance company, there is a great deal of room for denial of the insurance claim.

Most trustees, executors and beneficiaries should expect that if death occurs in the first two (2) years of the policy, that the policy will be investigated for misrepresentation by the insured.    If you are the insured, a beneficiary, or a trustee or executor, make a policy file and keep all records in the file, including a copy of your beneficiary designation.

In order to avoid a situation where the policy lapses for non-payment of the premium, you should set up automatic payments from your account so that the policy is in force at all times. Even if an insurance company is prepared to reinstate a lapsed policy, it will very likely have an impact on how they handle an eventual claim and whether or not there will be investigation and the potential denial of payment.

There's no doubt that internet-based social networking has shrunk the world in which we live, and has allowed us to stay connected with others, near and far.  These social utilities provide a plethora of otherwise-unavailable information to keep our "friends" (real or web-based) informed of our whereabouts, our activities and, even, our daily status. 

Yet the benefits of staying "connected" can have drawbacks when the information attainable on the world-wide web is used for more than social networking and is, instead, utilized for the purposes of defending a personal injury or insurance lawsuit.

Those who have profiles on Facebook, MySpace, Twitter or other social networks, and who are involved in litigation, should be forewarned that insurance companies too have begun to employ the internet for their own benefit.  We have witnessed this phenomenon over the past many months.   On the basis of information obtained on social networking utilities, we have seen defence counsel argue that various Plaintiffs in personal injury or disability actions are not as disabled or injured as they have claimed.  What may seem to be a harmless comment to update one's "status" on Twitter or Facebook, or to communicate with a friend on his or her Facebook wall, may ultimately be used against the author where he or she is involved in litigation.  While investigations of the Plaintiff (including surveillance) have long-since been used by Defence counsel and insurance companies alike, these tactics are now incorporating searches on various social networks to look for clues about the Plaintiff's day-to-day life.  At its worst, any such "clues" may be taken out of context by a Defendant who seeks to portray a seemingly harmless comment or photograph in an unfavourable light to the detriment of the Plaintiff's claim.

To eliminate or minimize the risks that a Plaintiff will encounter in the course of litigation, he or she should keep in mind the following tips related to social networking:

1. Consider removing your Profiles from social-utility networks pending the outcome of your litigation.  If you are not prepared to do so, know that information about you on these sites may be used against you;

2. Ensure that you employ the maximum privacy settings possible, including not allowing others to view your friends list on Facebook,  so as to limit the access that outsiders have to information about you;

3. Be aware that, on Facebook, even where your settings are "private", non-friends may still gain access to information about you by reviewing the profiles, photographs and walls of your friends (especially those whose settings are less "private") for information that may pertain to you.  Investigators will endeavour to retrieve information about you by accessing your friends' profiles;

4. Be wary of photographs and videos that you upload to your Facebook or MySpace profile, as well as your friends' photographs on which you are "tagged".  A picture is worth a thousand words and may be used by a Defendant, out of context, to undermine your personal injury or disability case.  Untag yourself on photographs posted by others, or ask your friends to remove photographs of you that could be used against you.  Know that a friend who is "tagged" in your photo album will, in turn, provide his or her friends with access to your album, unless the strictest of privacy settings is selected;

5. Keep in mind that every time you make a comment on Facebook, whether it be on someone's wall or photograph or as part of a group, your note may be easily accessible to investigators.  Keep such postings to a minimum and be cautious about commenting on anything that you would not like raised in the course of your lawsuit;

6. Similarly, investigators can easily ascertain to what "Events" you have accepted invitations over Facebook (whether they be social, recreational or other events), thereby becoming informed of your activities and social calendar.  Keep this in mind;

7. As tempting as it may be to change your Status on Facebook or Twitter regularly to reflect the goings-on in your life, we recommend that you not do so.  Through a personal injury lawsuit, it is optimal for the Plaintiff's lawyer to control, or at least be aware of, information about the Plaintiff's daily life that is provided to the Defendant.  The Plaintiff's lawyer will not be aware of, and won't have control over, information gleaned from Facebook or Twitter Status Updates.  A seemingly benign Status Update, for example, such as "Peter had a great time with his friends at the park today", can be used to undermine a Plaintiff's claim that he has lost enjoyment of life owing to an accident.  The Status Update, of course, does not indicate for how long Peter was out at the Park, how much pain medication he ingested that day, whether he required assistance with transportation to and mobility at the park, whether his outing caused an exacerbation in his symptoms thereafter and whether this is the first time Peter has socialized since the accident.  Taken out of context, therefore, the comment can have consequences for Peter in the course of his lawsuit.

So, in short, what can you take from all of this?  Be cognizant of the information you are sharing with anyone on-line, even where it appears that you have control over the reader.  Think before you speak on social networks.  Only say or reveal information that you are amenable to sharing in the course of your lawsuit.  And, definitely, speak to your lawyer if you have any question about how your participation on social networking utilities can impact on your case.