Insurers are in the business to protect the policyholder, but they must protect their interests to combat fraud in the industry.
If you are a policy holder of insurance, there is generally a clause that permits the insurance company to carry out any investigation when a claim is made on your policy. You also agreed to fully cooperate with the insurer in the defense of a claim, including the insured’s right to investigate a claim by purchasing the insurance.
Not all insurance claims are subject to an investigation. Only those claims that raise red flags are investigated. In Pontillo v Zinger et al, 1010 ONSC 5337, the Judge ruled that “insurance companies do not need grounds to believe that a plaintiff is making a fraudulent claim before they conduct an investigation”.
When a claim is filed, an adjuster is generally the first point of contact with the insured. He/she will take a written statement to obtain more detailed information about the claim and conduct the necessary preliminary investigation to protect the interests of the insurer and to ensure the claim is an insurable loss. They will prepare the preliminary reports to the insurance company.
Private investigators are generally the next point of contact from the insurer if fraud is detected. Surveillance is a common tool that is engaged by investigators to provide evidence to the insurer. Investigators are governed by their respective provincial acts that give them authority to conduct investigations. Private investigators are also governed by the federal privacy legislation.
The Personal Information Protection & Electronics Act (“PIPEDA”) is federal legislation that regulates the use of how private organizations collect, use and disclose information in the course of commercial activities.
Insurers must balance the privacy rights of the insured while protecting their own interests in handling claims. These competing interests give rise to many privacy complaints under the (“PIPEDA”) and other torts actions.
According to the “PIPEDA”, commercial activities are defined as “…any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.”
In State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada and Attorney General of Canada, Justice Mainville concluded that “there is no commercial activity” associated with hiring a private investigator to collect evidence because the activity itself is not considered a commercial activity when the surveillance is carried out to collect evidence to build a case for court purposes.
Investigators should be mindful of ensuring that the surveillances are practical and carried out where there is no reasonable expectation of privacy.
Insurers should also limit the information as much as possible when disclosing the particulars of the instructions to the investigator. Insurers can disclose the location of the alleged injury by providing the investigator with a description of the claimant’s restrictions. If the claimant is suffering from a mental health issue, it may be wise to disclose this information to the investigator, but always being conscious of limiting the information to what is reasonably necessary and pertinent to the claim.
The insurer should provide sufficient information so the investigator can positively identify with the claimant. This may include: their name, address, description or photograph, make, model and license plate number and any other relevant information. It is also important to provide clear and concise written instructions to the investigator and a description of the information required such, such as a report, video footage, photographs and any other relevant information.
The report prepared by the investigator should be factual, clear and concise and verifiable by providing the supporting video evidence or any other photographic evidence. The video footage evidence should be limited to the claimant’s actions and not contain the identity of third parties.
Investigator companies should be licensed and qualified and hold general liability insurance as well as errors and omissions insurance.
Insurance companies should establish they have used other options before resorting to a surveillance. For example, if an insurer receives information that the insured is working while collecting benefits, it would be wise to have the investigator interview the employer first before engaging a surveillance. If the investigator is unable to glean the information from the employer, the insurer has then established they have used alternative methods that are less intrusive before initiating a surveillance.
Surveillance can be considered intrusive on one’s privacy, even when it is carried out in the public. Therefore, it is an important practice to balance the privacy interests of the insured while meeting the expectations of the insurer.
At Duncan Investigations Inc., we are experience in carrying out surveillance investigations for insurance matters. Please contact us at (204) 233-3439 or toll free at 1-877-233-2002 or by email at firstname.lastname@example.org. Please feel free to visit our website at http://www.duncaninvestigations.com