For me, when I think of surveillance, I think of the movies. The image that comes to mind is a couple of guys with can headphones listening in on phone conversations while sitting in the back of a nondescript van. Probably because of the frequency of this cinematic image, most of us associate surveillance with some sort of law enforcement effort as part of a drug or organized crime prosecution.
How often do insurance companies do surveillance?
Over the years, insurance companies have begun to rely more frequently on surveillance to help them defeat personal injury claims. Until recently, this was more common in the Workman’s Compensation arena than in the personal injury setting such as injures from a car or truck accident. However, we have experienced an increase in the use of surveillance by insurance companies in these more traditional cases as a way to aggressively defend the claim. The last few years has seen an increase in the aggressiveness of the insurance companies in general, so it should not be a surprise that they are engaging in these kinds of tactics more frequently.
The first question that I am asked by clients is whether or not the insurance company has the right to do this in the first place. That is a fair question. After all, it does not seem right that they can essentially spy on someone who was injured by something that their insured did! However, as unfair as that sounds, the law allows them to engage in limited surveillance.
Common Investigator Tactics In A Personal Injury Case
When insurance companies start surveillance, the company’s investigators can shoot video, take audio or take still photographs of an injured person anytime they are in a public setting. This includes common activities like going out to eat, going for a walk in a park or on public roadways or going to a show. This also means that an injured person can be taped when they are at work if it is a job that caters to the public or is in any way in the public arena.
For example, a young man claims that he injured his low back in a car accident. He works retail. The insurance company can video him picking up and carrying boxes at work in an effort to prove that he was not seriously injured in the accident.
There are limits though. An insurance company cannot tap a phone or take video of someone through a window of that person’s home. Some basic privacy rights are retained.
Personal Injury Surveillance Is Protected In Wisconsin
Making this situation even more difficult for the injured plaintiff is the protection that Wisconsin law gives parties than engage in surveillance. Ordinarily, the injured party is entitled to anything relevant to their case in the possession of the defendant except for the confidential work product of their attorneys. Wisconsin courts have ruled that the material obtained through surveillance is essentially work product and does not have to be turned over to the plaintiff simply because the injured plaintiff asks for it.
However, at some point before trial, the defense does have to turn over their findings to the plaintiff. The plaintiff also has the right to examine the investigator who did the surveillance to find out many important things about the investigator’s tactics and the circ*mstances of the surveillance.
Often the insurance company only wants to show the jury the video that helps their case. There often is video taken that shows things that actually help the plaintiff.
Take our example above concerning the guy who works retail who is videoed carrying boxes despite claiming that he has a serious low back injury. The video that the insurance company would like to show the jury may just show the injured person carrying boxes. However the next few frames of the video may show the injured party putting down the boxes, grimacing in pain and rubbing their low back in response to the pain caused by picking up the boxes in the first place.
So, there really is very little that one can do if they are being spied upon. There are very limited circ*mstances that allow it to be stopped. The most common way it is halted by court order is the situation where someone knows that they are being surveilled and that knowledge causes them such severe emotional distress that it becomes a medical issue.
If you suspect that you are being videoed, we suggest that you do nothing different from what you normally would do. You should engage in whatever activities your injuries allow and try and go on with your life as if it was not happening. Exaggerated personal injury claims are not looked upon kindly, and as such, we suggest that you not try and exaggerate your injuries for the sake of the camera.
After all, the truth is the truth. If you are following your physicians recommendations and staying within the limitations that they have prescribed for you, there should be nothing that the insurance company can record that would be of any real use to them.
FAQs
Is Surveillance in Personal Injury Cases Legal? It can feel quite invasive to know that someone may be watching your every move. Some personal injury victims may even feel that their rights to privacy are being violated. However, the law does allow for this kind of surveillance.
Do insurance companies send people to watch you? ›
While the insurance company may follow you at any time, there are certain times where it is most likely to occur. We typically see insurance companies conduct surveillance around claim-related appointments.
What is an example of injury surveillance? ›
Examples include the Fatality Analysis Reporting System (FARS) and the National Automotive Sampling System (NASS) for motor vehicle-related injuries; the National Traumatic Occupational Fatality Surveillance System (NTOF), the Census of Fatal Occupational Injuries (CFOI), and the Survey of Occupational Injuries and ...
Is surveillance evidence admissible in court? ›
Courts will only admit video evidence if it is deemed relevant to proving or disproving a disputed fact. For example, in a personal injury case arising from a car accident, video footage from nearby surveillance cameras showing the sequence of events may be highly relevant and, therefore, admissible.
Can insurance companies tap your phone? ›
Insurance companies cannot tap your phone, but they can request to see your phone records. They may ask you directly or they may go through court channels.
How to avoid insurance surveillance? ›
You should ask your family and friends not to talk about you, post pictures of you, or tag you in their social media posts. The private investigator or insurance adjuster may also search their social media sites for damaging information about you.
How do insurance companies do surveillance? ›
Insurance adjusters often use video surveillance as a reliable method to verify the authenticity of a claim. By hiring private investigators, they aim to capture footage of claimants involved in activities that might contradict their reported injuries.
What are the three types of surveillance? ›
What are the three types of surveillance techniques? The three types of surveillance are direct, preconstructive, and reconstructive. Direct is covert, preconstructive is more public, and reconstructive is reviewing information and evidence gathered from the other two techniques.
What is an example of active surveillance? ›
Active surveillance is a process whereby state or local agencies actually look for evidence of disease risk. For example, when trying to find if a certain virus carried by mosquitoes is in Texas, mosquitoes are collected and sent to the lab for testing.
Why is injury surveillance important? ›
Sports injury data is needed to guide injury prevention activities, to set and monitor sports safety policies and interventions, and as the basis of sports injury prevention research.
A subpoena is a legal order that compels the custodian to provide the video footage. A court order is a more formal legal order that is issued by a judge. To obtain a subpoena or court order, you must file a motion with the court and show that the video footage is relevant and necessary to the case.
What type of evidence is surveillance? ›
Demonstrative evidence such as a surveillance film is, like all evidence, subject to interpretation and is weighed along with all other evidence in the case.
Can a secret recording be used as evidence? ›
In California, while illegally obtained recordings can't be used as primary evidence, they can be a game-changer for preventing perjury and impeaching witnesses. This means you can't use the recording to directly support your case, but you can use it to call out a witness who changes their story on the stand.
Do insurance investigators look at cameras? ›
Insurance companies may conduct their own investigation in response to a particularly costly claim. This can include going to the scene of the accident and looking at surveillance footage or any other available evidence. Insurance companies may look at security camera or dashboard camera footage of the car accident.
Can insurance companies look at text messages? ›
Can insurance companies track your phone? Insurance companies can listen to phone calls and read text messages, but they must have your consent to do so.
What is the first thing an insurer must investigate before taking on a claim? ›
Investigate all grounds for coverage
The insurance company must investigate all possible grounds for coverage. In order to perform a reasonable and proper investigation, insurance companies must also investigate all bases for the insured's claim.
What triggers an insurance investigation? ›
The most frequent triggers are when an insurance company notices an unusually high number of claims or if the insured exhibits suspicious conduct that could be a sign of fraud.
How do insurance companies track you? ›
Insurance trackers plug into your car using a port typically found below your steering wheel. This is the same connection that a mechanic uses to read your car's computer data and discover any problems with your vehicle. The insurance company's device also reads your computer's data.
Why does the insurance adjuster want to meet with me? ›
Insurance adjusters want to settle a case as soon as possible, and that is why they want to talk to you immediately after the accident. If the insurance adjuster can offer you a settlement in the very beginning, they will save themselves a significant amount of money.
Why is an insurance investigator calling me? ›
Discussion of Injuries: Insurance adjusters may try to dig deeper into your injuries to find information they can use to devalue your claim. They may ask about the severity, recovery timeline, or the treatment you received in hopes you slip up and give them something they can use.
