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Atterbury, Kammer & Haag, S.C.
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Is someone watching you? Surveillance in personal injury claims.

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.

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.

An insurance company 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.

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 circumstances 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 circumstances 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.  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.