WHEN TO SPEAK UP!
It is not very often that we find ourselves with the occasion to discuss a decision of the United States Supreme Court and its potential impact on the world of public adjusting. We now have that opportunity thanks to the June 16, 2013 decision in Salinas v. Texas.
This case stands for the proposition that an individual questioned by law enforcement in a non-custodial situation who remains silent when questioned about a potentially incriminating matter may have that silence used as evidence of guilt by the prosecutor in a subsequent trial.
THE SUPREME COURT OPINION
In Salinas, an individual was being interviewed by the Houston, Texas police in regard to a double murder. He answered many questions, but did not respond when asked one particular question (whether ballistics testing on shotgun casings found at the murder scene would match his shotgun - a rather important point). He thereafter answered more questions. The police did not charge him with the murders and let him go. Several days later, a witness came forward who claimed that he heard the defendant admit to the killings. He was charged, but by then had absconded. He was found 14 years later living under an assumed name in the Houston area. He was charged with the murders and at trial the prosecutor introduced evidence of the defendant's reaction (silence) to the cited question. He was convicted and sentenced to 20 years' imprisonment. His appeal eventually reached the U.S. Supreme Court.
The Court ruled in favor of the prosecution, holding that the privilege against self-incrimination must be invoked and cannot be assumed by silence. Silence in response to a question is not the same as invoking the privilege and one's silence can be introduced as evidence.
How does this affect insurance adjusting? Arson investigations immediately come to mind. If the local arson investigator asks your insured some question that makes your insured uneasy for whatever reason, what do you do? If this is in a non-custodial situation, your insured should request to consult with counsel before continuing the interview. If the insured is in custody (under arrest and not free to leave), the insured should invoke the Fifth Amendment privilege. Note that in a non-custodial situation, invocation of the privilege itself may be used against the insured. (This is the issue that led the Supreme Court to take Salinas' case, but they did not reach that issue because Salinas did not invoke the privilege.)
Making a willfully false or misleading statement regarding a material matter in presenting or in support of an insurance claim is a crime in the State of New Jersey, (N.J.S.A. 17:33A-4). Insurance claims are subject to extensive investigation at both the insurance company level (adjuster and SIU), and in certain circumstances, at the County and State levels. This gives rise to many situations in which an insured under investigation can self-destruct and forfeit a valid claim. Certainly no insured wants to invoke the Fifth Amendment privilege in speaking with an SIU investigator, who in any event, will explain that the refusal to speak may be viewed as a failure to cooperate in violation of the coverage conditions of the policy and lead to a denial of the claim. Whether the insured keeps silent or invokes the privilege, that evidence can be used against the insured in a later proceeding, either criminal or civil. The better course is for your insured simply to request an opportunity to consult with his counsel (a Sixth Amendment right). The insured will probably look to you for guidance in finding counsel.
The more difficult situation is the insured who shouts his innocence from the rooftops, but who is entangled in a web of facts that could be configured to paint an incriminating picture. What to do? Cooperate and provide the reasons why certain facts are innocent, not incriminating, at least until it becomes obvious that the insurance company is not listening and is only seeking a basis for denial of the claim. At that point, if you cannot jump in and redirect the investigator to a proper line of inquiry, the insured should play the counsel card. Remember, the company adjuster will write up a report and that report, no matter how erroneous or how badly the adjuster misunderstood the insured, will follow the claim and be taken as gospel all the way through trial. Limiting the opportunity for mischaracterization by the insurer is preferable and the insertion of counsel into the equation tends to put the insured on an even footing with the insurer.
The Supreme Court's decision in Salinas will undoubtedly lead to increasing efforts by cunning insurance personnel to place insureds in disadvantageous positions in an effort to evade valid claims. Don't let them get away with it!
As always, if we can be of assistance to you or your insureds in these types of situations, please feel free to contact us at 973-538-4100 or by email at firstname.lastname@example.org. We are here to help!