New Insurance Strategy in Low Speed Soft Tissue Cases

26 Jul 2007

Welcome to a new program implemented by Allstate and other insurers in low-speed crash cases.

Under the new program Allstate is making low settlement offers on all soft tissue injury claims involving low speed crashes and minor vehicle damage - even in cases of clear liability.

The offers are generated by a computer and once they are made, the company often refuses to negotiate further.

The take-it-or-leave-it offers are forcing virtually all of these cases to trial.

And other insurers, such as State Farm and Nationwide, are beginning to take the same approach

'You've Been DOLFed'

The new program is called "DOLF," an acronym for "Defense of Litigated Files." In some states, it is also referred to as "MIST," or "Minor Impact Soft Tissue" cases.

The cases typically involve low-impact crashes with little property damage, where the plaintiff claims injuries to the neck or back - the classic whiplash case.

Insurers like Allstate and State Farm are trying to take advantage of the climate of "tort reform" and a strong economy where some jurors are skeptical of plaintiffs who claim these types of injuries.

In certain states, the program has been around for years. But in many others, it's just being introduced.

Last year, Allstate lawyers approached a group of Pennsylvania judges to unveil the program there. At that meeting, the company claimed to have recently implemented the program in California, Florida, Louisiana, and New Jersey, according to a plaintiffs' lawyer who was present.

The new Allstate motto: "You are in good hands with the Allstate computer"

Allstate adjusters aren't negotiating settlements anymore because offers are being calculated by a computer program known as "Colossus."

The program computes certain variables and comes up with a value. For example, the type of injury and geographical location and similar verdicts or settlements might be variables that are input.

The program is only as good as the person using it, however.

Because the program requires the most serious injury be input first some strange calculations can result. If the first injury is inputted as a soft tissue injury and the second is a herniated disk, it may not recognize the herniated disk.

It has also been suggested that the value generated by the program is artificially low because Allstate can choose what numbers to input - such as low settlements - and what numbers not to input - such as verdicts.

The new stance that insurers are taking has changed the way some lawyers approach these cases.

Many plaintiffs' lawyers are turning down low-impact soft tissue cases altogether, unless there are "unusual circumstances," such as an aggravation of a pre-existing condition or some evidence of visible injuries like a bulging disk.

But other lawyers are confronting the tactic head-on.

Most lawyers say they don't plan on turning down cases because of this new tactic, but they are changing the way they handle them.

Insurance companies are also hiring more experts to defend soft tissue cases. As a result, plaintiffs' lawyers are being forced to file more pre-trial motions and hire their own experts.

Experienced personal injury attorneys are taking a broader approach to the situation in order to assure that accident victims are fairly compensated.

One important step is the gathering of available medical and scientific data concerning the whiplash injury.

Whiplash, or soft tissue injury, has been the subject of considerable research over the years.

Roughly a million whiplash injuries occur each year, many in low-speed crashes. The real question for research to answer is whether people can suffer provable injuries from these collisions.

According to available data, they most certainly can - even in crashes that leave no vehicle damage. In a 10 mile-per-hour rear-ender - the occupant's body jerks forward while the head stays put, resulting in a sudden backward motion of the head relative to the body.

Studies from the last five years show that even at 5 miles per hour, the sudden movement results in G-forces high enough to turn the average human head into a 150-pound load on the cervical spine.

Although claims adjusters often cite studies that the amount of force placed on the human head bears no correlation to spine injury, these studies were not conducted under conditions resulting in the whiplash motion.

A 1997 study showed that the less a car is damaged in a collision, the higher the acceleration of the struck vehicle and the greater the risk of spine injury. This is because a car that compresses or collapses in a collision absorbs more of the force of the impact than one that stays undamaged or rigid. The more force absorbed by the car's body the less force visited directly upon the body of the occupant.

In addition to these motion studies there are current medical studies showing the exact type of spinal damage that can occur from the whiplash motion. For example, there are three 1996 studies that show a direct relationship between whiplash motion and damage to the spine's facet joints - which other studies show to be a common source of whiplash pain.

Medical reports and articles have shown that common whiplash symptoms such as headaches, lower-back pain and even carpal-tunnel syndrome, can be the result of disturbances in the cervical spine.

Can whiplash result in brain injury and post-traumatic stress disorder?

Studies conducted within the last three years show that the whiplash motion at the lowest possible speeds can still cause significant impact on the brain as it moves suddenly within the skull.

Knowledgeable experts are available to explain these concepts and findings to a jury.

The experienced personal injury attorney who is confronted with the Allstate computer approach to the compensation of accident victims knows where to turn for the scientific and medical support needed to present a claim to a jury.

This is a battle that a victim, properly represented, can win.