Insurance companies in Maine and other states do conduct surveillance on personal injury claimants, especially those who claim large sums or a major disability. Is this spying legal? Yes, within limits. On the one hand, insurance companies have the right to ferret out fraud and therefore they conduct secret surveillance to make sure claimants aren’t bringing false claims. On the other, most claimants find surveillance creepy, disturbing and an invasion of privacy. Whether or not the surveillance is found to be appropriate depends in part upon where the spying takes place.
There aren’t a lot of Maine appellate cases deciding the extent to which an insurer may conduct surveillance. A 2001 appellate case, however, affirmed the right of an employee to sue for trespass to property, invasion of privacy and intentional infliction of emotional distress against a workers compensation insurance company, a private investigation business and a private investigator based on their surveillance activities while the employee received workers compensation benefits.
In one Pennsylvania Supreme Court case, two investigators conducted surveillance on a claimant when she left her house. The court found that because the woman exposed herself to public scrutiny every time she left the house and the surveillance did not extend into her home, the surveillance was not an invasion of her privacy.
Similarly in New Jersey, investigators watched a female plaintiff to determine the extent of her injuries. They watched her in the yard in front of her house and at a rest area forty miles from her home. A superior court found that the surveillance was not unreasonable because whatever could be seen from a public place could not be private.
On the other hand, in California, where one of two investigators initiated a romantic relationship with a workers’ compensation claimant and secretly videotaped their exploits, the California Supreme Court found their conduct malicious and reversed the trial court’s dismissal at the demurrer stage. The claimant sued for conspiracy, negligence, the intentional infliction of emotional distress and sought $2 million in punitive damages.
If you file a personal injury claim, you should be aware that the insurer has the right to watch how you behave in public. As long as you are telling the truth about your injuries, this should not present a problem. However, you may push yourself in public and if you do, you should know that what you consider to be “putting on a brave face”, or pushing yourself, may be interpreted differently by the insurer, as well as a judge or jury.
As such, it is critical to be careful, particularly in public. If a doctor tells you not to lift items over a certain weight or advises against certain activities, follow the doctor’s orders. Avoid doing anything that might be interpreted in such a way that your credibility will be called into question. If you believe you are being spied upon, it is acceptable to politely confront the person you think is conducting the surveillance. This may make the evidence less useable in court.
You should also stay off social media or carefully limit your posts as a claim or lawsuit moves forward. An insurer may be able to see what you post publicaly. Because social media privacy rules are constantly changing, things that you think you are posting privately may wind up becoming public or may be revealed to people that don’t have your best interests at heart. Often, the public image that a person constructs on his or her Facebook or Twitter profile may appear to be happier and better-off than he or she is in reality. You are unlikely to post images of your injuries or complain about how much they hurt. It may be better not to post at all, than to post images that contradict what you are presenting to an insurance company, a judge or a jury.
If you are severely injured in an accident, you will need the help of a knowledgeable personal injury attorney. An insurer does not have your best interests at heart, and it is unlikely that an insurer will immediately provide you with an offer that meets or exceeds your long-term needs after a serious accident. If an insurer presents you with surveillance footage that purportedly discredits your claims, it is more likely an intimidation tactic than a good faith effort to settle your claim for what it’s worth.
The attorneys at Briggs & Wholey are dedicated to pursuing justice for accident victims. Contact the Maine personal injury lawyers at Briggs & Wholey, LLC by phone or via our online form for a free consultation.
More Blog Posts:
Study Claims Drivers in Maine and Across the U.S. Are Distracted More Than They Realize, Maine Personal Injury Lawyers Blog, June 13, 2013
One Hurt in Negligent York County Traffic Wreck, Maine Personal Injury Lawyers Blog, June 7, 2013