The Art of Adjusting® Podcast

Episode #87: Speed Limits Aren’t Permission Slips In A Storm

• William Auten & Chantal Roberts • Season 3 • Episode 87

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Storm clouds don’t just darken the sky, they raise the duty of care. We dig into how snow, ice, fog, and heavy rain change what “reasonable” looks like behind the wheel and at the claim desk. From multi-car pileups to slow-speed parking lot crashes, we break down how to evaluate negligence when the surface and sight lines won’t play fair, why “I was going the speed limit” can still be careless, and how to separate traffic citations from true liability.

We trade real-world scenarios that every adjuster recognizes: black ice that looks like a harmless wet patch, diesel spills that turn intersections into turntables, and the moment a vehicle leaves the road and plows into a storefront or home. You’ll learn when property owners should use their own policies and subrogate, how ACV versus RCV plays out in third-party claims, and why clear early communication about pollution exclusions and sublimits matters when cleanup crews start excavating. We also cover parking lot exposures, pedestrian duties, and the impact of salt shortages on the reasonableness of maintenance efforts during active storms.

To help you work cleaner, faster, and fairer files, we share a five-point winter claims checklist: certified hourly weather data, visibility and lighting details, road maintenance timing and logs, vehicle damage pattern analysis, and statement consistency with physics. The takeaways are simple and powerful, conditions matter more than posted limits, tickets inform but don’t decide, and winter raises the duty to anticipate. Subscribe for more practical tools and share this episode with a colleague who could use a sharper winter playbook. What’s your toughest cold-weather claim challenge?

For more insights, you might consider a career in liability adjusting or if you're searching for reliable adjusting services, visit Auten Claims Management.

To explore more about Chantal Roberts and her contributions to the industry, visit CMR Consulting.

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William Auten:

Hello, I'm Bill Auten of Auten Claims Management.

Chantal Roberts:

I'm Chantal Roberts of CMR Consulting, and welcome to the Art of Adjusting Podcast.

William Auten:

Today we're going to talk about life as an insurance adjuster from the perspective of property, auto, liability, or workers' compensation adjusters. Our goal is to bring interesting topics in the world of claims adjusting to people who are working as an adjuster now and to people who are considering a career as a claims adjuster.

Chantal Roberts:

Oh my God, Bill, you are just the cutest. I'm like stanning right now. You are just the cutest.

William Auten:

We still don't know what standing means. It's one of those uh Gen Z terms, I guess.

Chantal Roberts:

Yeah, it's a it's a Gen Z term. And of course, I have to be all hip and all with it and jiggy, which is totally not a Gen Z term, but it means it's the combination of stalking and being a fan. It's what Gen X used to call fangirling. You know, like, oh my God, I'm fangirling so hard, even if it was a guy who was fangirling. Um so standing means that I'm stalking you, and then um I'm because I'm a big fan, so I'm stanning s t-a-n-n, because it it does sound like stand being like you're standing somewhere, but no, I'm stanning because you're just so cute.

William Auten:

That's not creepy at all.

Chantal Roberts:

No, it's not creepy at all. And so everybody needs to go to the YouTube uh videos to to watch the podcast and be sure to like, subscribe, comment, share, blah, blah, blah, because it helps the algorithm pick everybody up. And you know, we want more than our 15 listeners that we have now. So, um, but and then you get to see how cute Bill is.

William Auten:

Yeah, you can check out and criticize my wardrobe.

Chantal Roberts:

No, he is just adorable today. Okay, because you know why is because we are talking about winter driving. Yes, and and he is all just like geared up.

William Auten:

And what I want to know is ready to roll, man.

Chantal Roberts:

Yeah, literally, literally ready to roll. What I want to know is are you outside in the New York winter so that you won't get hot, or are you just gonna have to like take your coat off later on?

William Auten:

Because I'm gonna roast my coatas off here.

Chantal Roberts:

Yeah, yeah, your little your little bootet off. Okay. So um, yeah.

William Auten:

In the in the uh uh um in the vein of of Stan and Gen Z, um, I will just say uh six seven. Although this is this is that's alpha. Yeah, that's alpha. So this alpha. Okay, that's alpha. So this is eighty episode eighty-seven. Woo-hoo! Um yes. Uh is there a tie in there? I have no idea.

Chantal Roberts:

No, no, there's not. We there's no eight seven. We um except if you if you say, Um, why was number why was number nine scared of the number eight and it's because uh seven eight nine or or or why yeah, uh why was number six scared of number eight because seven eight nine. Anyway, yeah, I don't remember.

William Auten:

Seven is the new 67.

Chantal Roberts:

No, let's let's quote it. Yeah, let's let's start it um with all of our hipness that we've got. Right, right. So yeah, we are gonna be talking about winter driving, which is apropos, because as everybody knows, we we kind of record this a little bit earlier, and uh everybody in the south, in the midwest, uh are getting is getting ready for this big winter storm that's coming. Uh in fact, yeah.

William Auten:

So we're we're recording this prior to the storm release date. So the day we're recording this is the day that everybody's supposed to just about get hit. Um, so who knows by the time this episode goes live, who knows how many other 100 car pile ups there will be across the nation. Exactly. None, hopefully zero people.

Chantal Roberts:

Yeah, because they're really encouraging everybody to stay off the roads. I know here in in in the Kansas City metro area, it's supposed to hit about 6 p.m. uh Friday night, and we record on Fridays. So yeah, I um we've already been to the grocery store, you know, already ordered our stuff, uh, planned to hunker down. Last weekend was really cold, and uh Aaron and I did a little you know, all day date kind of deal, but this time we're just we're hunkering down and staying in.

William Auten:

Well, I know this winter is um back to what I would I wouldn't say unusual, I would say back to normal. I would say over the past five years or so, we've had unusual weather in terms of snow. We just haven't had much. Uh and I know that because the boots that I used to use to to clear the driveway and and run the the snowblower um are gone. They I threw them away because they were getting old and stuff, and I never replaced them. Uh uh this morning I went out and I bought new ones.

Chantal Roberts:

Oh, did you now? I was gonna say, do you regret credit now? Did you have to go get some? Yeah. Yeah. So yeah, we're gonna be talking about winter driving and for auto liability, first party auto, uh, and then bodily injury, which we've talked a little bit about in the past. We're gonna focus on again how weather conditions change the duty of care, which again, we even talked about last week a little bit when I was using the example of a friend of mine who lives in an apartment complex, and they are under the firm belief that the landlord needs to go out in the middle of a blizzard and be clearing sidewalks, and that is not the case. Um, and and often how claims are misevaluated because of the weather conditions. And and so um, Bill, why don't you, since you're you live up north more and I'm a wilting southern flower, why don't you take it away?

William Auten:

Well, um, so when you're uh dealing with claims, the winter claims are going to affect you know general liability and auto and first party property for that matter, too. But we're talking about auto today and uh uh specifically these conditions that lend themselves to accidents. So um I don't know if you knew this or not, but you should go slower when the roads are slippery. I mean, like apparently a lot of people don't realize that. And uh I was just um it was just about a week ago. The weather here was really bad, and uh I came around the corner nice and slow and I pulled into the parking lot here at the office. And as I backed into my spot, I saw this car going like uh spiraling down. Unfortunately, she didn't go off the road, she kind of just settled down and uh and slowed to a stop. But um yeah, the weather conditions uh have more of an impact on driver safety than than a lot of people unfortunately realize. And this particular storm is hitting in an area where people just aren't used to that kind of weather.

Chantal Roberts:

Yeah, because I think it essentially in the South, uh we basically have 10 snow plows between, you know, all of us, all of the states. Uh and and we kind of share. Um, because we are we are all related, you know, with there's only a the trunk, like I said. Um and and I joke about Arkansas only having one snowplow for the entire state. But um, you know, it it is true, we don't know how to drive, but if you think about it, it's not just the winter weather that you should slow down for. It's it's for anything. If it's pouring rain and you cannot see, you know, five feet in front of you, you need to slow down. If it's foggy, you need to slow down. And and I know we're not saying this to tell claims adjusters to slow down. What we're saying is as claims adjusters, when you have an accident that has been reported to you, uh, that, you know, an insured has rear-ended uh a claimant, for example, in its foggy conditions. Well, we need to be knowing, you know, did the did the claimant have blinkers, hazards on? Is is that one of the reasons why the insured rear-ended, or was the insured going 55 in a 55 speed limit, and they should not have been, something to that effect, you know. Um, so it it it really does impact the way that you look at negligence.

William Auten:

Yeah, uh weather conditions, um, they're not a defense uh in most cases. So um so this uh this pileup that happened recently, 100 vehicles, I can't remember which state that was. Um it just happened, I should know. But um regardless, it was a massive pile up of cars, many people injured. I believe there were fatalities as well. And um can anybody involved in that in that pile up or any any similar pile-up claim that the weather contributed to their um their crash?

Chantal Roberts:

Oh that's a that's a great question. I think it would be a part of it, but but honestly, it's the and we talked about this b uh what was it early when you came back because I felt that there were so many people who had forgotten what the rules of the road were. Uh whatever, we can look that up real quick, but um that particular episode. And it was the fact that yes, you need to be paying attention, or yes, the weather can be bad, but you also need to be paying attention and and and going slower. So I don't think the weather can be 100% at fault because there's always going to be that first person who starts it, even if they're spinning out, like you said, that woman who was spinning out, there was nobody else around her. Uh, but she was she, if someone would have hit her, she would have been the cause of the accident because she was going too fast for conditions.

William Auten:

Right.

Chantal Roberts:

So um, yeah.

William Auten:

So in in a in a pile up scenario, well, let me ask you this on dry roads, somebody in front of you uh loses control of their vehicle, spins out, and uh winds up on their side in the middle of the road. The vehicle is tipped over on its side in the middle of the road. And um dry day, bright sunshine, and you hit that car. That's your fault.

Chantal Roberts:

That's your fault, yes. Because then you, I mean, both they were not, you know, driving safer conditions, but but you weren't keeping an adequate watch, you weren't, you know, paying attention to the to to the events around you, maintaining a safe distance. And that episode number, by the way, uh was episode number 83. It came out on Thursday, December the 4th, 2025. So okay. I mean, just recently, if we're on like 20 or 87, so yeah, yeah. Shows how good our memory is now that we're old. Um, but but that's my that's my thinking. Um one of the things that I think is really important, I don't think we talked about last time, but I think we should, and it goes to what we're talking about now, is that you know speed limits are are m maximums and they're suggestions, and and sometimes there are minimums, but even those are suggestions.

William Auten:

Yeah, you're you you cut out there when you said the word minimums, but I I Yeah, minimum, sorry. That's what you said. Yeah. Um yeah, for a highway, you know, divided highway where the speed limit's 70 miles an hour, um, going 30 miles an hour is not a good idea, especially at night. Um and and accidents do happen because of that. And I've handled I've handled, I can think of at least two fatalities where that happened during um bad weather. So it was snowing really hard, visibility was bad, the roads were slippery, a car was going very slow. In both cases, it was an elderly person. Why they were out on the highway, I do not know. Um and both of them were one was re rare re-rented by a tractor trailer, the other case was a um it was a waste disposal truck, so a garbage truck, basically, a big uh larger one. But nonetheless, um I it's hard to it's hard to impute liability on the person who's going slow, but um if there's a law in place, you gotta obey that law. That law is there for a reason. Um you can still it's still tough to to impart liability on on someone who gets rearrented ever.

Chantal Roberts:

Yes, yes, unless it's one of those swoop and squats. Now, there is such a thing as going too slow, um, but we're not gonna confuse confuse issues.

William Auten:

Well, I mean that's that's um that's exactly what we're talking about, I think. Uh if you're again, these are divided highways with a speed limit of five miles an hour or something, and they were they were going um probably what they thought was safer conditions. Witnesses were pegging them at probably 30 miles an hour. Um tractor trailer comes up over a rise, can't see them till the last minute, uh especially in bad weather conditions.

Chantal Roberts:

Right.

William Auten:

And um, so you could argue all day that truck should not be going the speed limit, they should be going well under because of the conditions. Right. Um and I would argue that even at night you should be slowing down.

Chantal Roberts:

Uh absolutely. There's deer, there's you know uh well, yes, and and especially in the okay, so let's talk about this one thing that I have never and you've explained it to me before, and I still don't understand it. Because again, southern. Um black ice. But you know, I would think even in the dark you couldn't see black eyes, but you but i infamously you can never see black ice or something to that effect. So can you explain what black ice is and sure how that impacts everybody?

William Auten:

Yeah, so asphalt, um when when asphalt is dry on a sunny day, it kind of has this, especially around here because of the salt we use during the winters, it kind of has a grayish, dark grayish kind of a color to it. Um when you get it wet, if you spray water on it, it suddenly turns darker. You know, it looks black because of the because of the liquid on it. And um when it the temperatures reach freezing, water can melt and run onto that road and turn it that dark black color, but it just looks wet. It doesn't look like it's ice.

Chantal Roberts:

I see. Okay, okay, okay. So you're thinking it's rain water and you can just you know slush on through it or whatever, and maybe it's ice and you lose traction.

William Auten:

Right, as opposed to the the picture here, uh where in my background here, right, right. Uh you can see there's some white on there and some ice. Um, that's different. That's you know, fairly obviously covered with some slushy, messy stuff. Black ice is a little more mysterious because it just looks like it might be wet. Right. And that can happen in parking lots where people slip and fall as well. Uh, not just um true.

Chantal Roberts:

So again, also uh bonus points if y'all are watching the podcast, and uh that's this is the way that you get to see great pictures that normally we don't ever show. You just get to see our smiling faces. Right. But yeah, um, exactly. So yeah, we've we've talked about okay, so now I understand it. The the black ice basically it looks like the road is wet, so you speed up, but this is when you actually lose control of your car because it is actually ice, not a wet road that you would still have traction on.

William Auten:

Right.

Chantal Roberts:

Um, yeah.

William Auten:

Another thing I I would like to talk about is uh the effect of diesel spills or oil spills on icy roads. And I've experienced that before, and it is not like anything you could imagine. It it is like um I I went to the scene of an accident. I it wasn't on the claim I was handling, I just happened to come across a scene where a car had slammed into the side of a truck and one of the tanks broke open and spilled diesel fuel everywhere into the road and into the intersection. And um three or four more cars had already slid off the road because of the conditions, and and no one really could figure out why, because it didn't look like it, it just looked like a wet road. Like all the road was wet with a black ice mix. Um but as soon as a car touched this oil, it instantly lost control and just spun in circles. It was amazing. I saw three cars do that. Oh wow. I I backed up and went the other way, turned around and went the other way because it was very clear to me that you were not getting across that oil spill without spinning out of control. Um, so that's something to be aware of too. Uh how you would know, you know, what are the how would you ever know that there's oil there instead of just ice? Um, the only I think way you would know is if there's an accident right next to it with a big diesel truck. Um that might be your only signal. Um, or if you watch the vehicles ahead of you and they're spinning out of control, that might be a pretty good indication as well. Exactly. Amazing to watch how people lost control um in those conditions. So I think oil on just a dry road in the summer probably is going to be a little bit slippery too. But man, during icy weather conditions, forget it.

Chantal Roberts:

Yeah, I have never seen it because the the diesel fuel spills that I have always worked have always been pollution. And it's because the the driver fell asleep and went off the road, or uh it's windy and the wind toppled the truck, uh uh something to that effect, or they were involved in an accident and the fuel was spilt. And in that particular instance, it was always a pain because we had in our policies an absolute pollution exclusion. So we would never be able to pay for it. But to pay for FYI adjusters, if you don't know this, to pay for pollution uh or the diesel fuel spill, it's kind of expensive. Because what the tow very expensive, what the tow company or hazmat or whomever has to do is they usually have to get, I think like four feet underneath the where it was last wet. You know, so I mean they're taking a huge chunk of the ground out for contaminant purposes. And they're having to take it to a hazmat facility. And you know, that is in and of itself is expensive. Um, and if you don't have an absolute pollution exclusion, there are a lot of sublimits on um these kind of diesel fuel spills or pollution cleanup issues. And nine times out of ten, um I guess it's the EPA or whoever kind of has that super lien where they might clean it up and then file a lien against your file, kind of like what we talked about with CMS with the fund. Yeah, yeah, the Medicare Medicaid kind of lien. And so you've got a whole nother issue right there. Anyway, my point is pay attention, talk to your insured early. It's gonna be expensive. Let them know what your limits are. If it's zero, if it's yeah, we can pay 10,000 bucks and then you're gonna be out 90,000. I don't know. However, it's gonna be, you need to let them know and have that conversation early.

William Auten:

Yeah, and it's not just soil. Um, if you know, of all you know, I've handled, I don't know, hundreds of them over my career, and the majority of them happen near some kind of stream or waterway.

Chantal Roberts:

And it's like it's drawn to it, right?

William Auten:

Yeah. Oh my gosh. That cleanup involves, you know, they they put these um bumpers or whatever. Yeah, the bumpers to the that uh soak up the oil off the surface. Luckily, it floats, right? So it's all off the surface.

Chantal Roberts:

Yeah. Um, and uh, but God help you if there's fish in there and you know, blah, you know, beaver dams and oh geez. That's a great topic that I know absolutely nothing about, but I will be happy to talk for an hour and act like I know what I'm talking about.

William Auten:

It would be great to get somebody from uh maybe from a hazmat company that does the does the um the actual remediation.

Chantal Roberts:

So if someone knows someone, email us.

William Auten:

Yeah, I haven't had a claim like that in so long. Um, I have some old contacts I could probably reach out to.

Chantal Roberts:

Yeah, but let's make our listeners do some work for us. Right. Yeah all 15 of them. Yeah. Um, so so we've talked about uh key winter conditions, we've talked about driving too fast for conditions, you know, following the distance and our chain reactions. Um, you know, that is also important. And one of the things that you had mentioned that I think is important, we've talked a lot about uh in previous episodes is just because you've gotten a ticket or just because the insured has gotten a ticket does not mean they are at fault for the loss because the law may say one thing, and of course, determining liability or negligence is a totally different thing.

William Auten:

Sure. A very simple example is it would be that uh two two cars are are speeding uh next to each other, and and one car changes lane suddenly, um, and they both wind up getting speeding tickets, but the speeding isn't what caused the accident, it's the it's the driving into the site of the other vehicle that caused it. So um yeah, just uh uh traffic violation doesn't necessarily equate to liability.

Chantal Roberts:

Yeah, uh yeah, and there's and and even if and why this is important too is uh oftentimes the insured may not be at fault. Um and so they have filed a claim against the other party, and uh I don't know, for whatever reason, that insurance company won't accept liability, so they come to you as the adjuster, you go ahead and work your claim and then you subrogate against the at vault party. But the but the insured happens to have gotten the ticket, and so the at vault party is like, we're not at fault, we didn't get the ticket, you got a ticket. That's when you need to to educate the other adjuster, tell them to come listen to us, um, you know, because we obviously know what we're talking about, and they need to educate themselves, right?

William Auten:

So um, so damage to your car and to other cars isn't the only hazard. Uh, the other morning I was coming to work and I go past one of our favorite restaurants every morning, and I noticed a big blue tarp on the side of the building. And I uh uh followed up with the news that day. And uh that morning, somewhere around four o'clock in the morning, somebody lost control on the icy road and uh swerved all the way to the left and hit the curb and then bounced back and recovered and crossed all all four lanes again and drove right into the corner of the building and took out the kitchen. So oh, that's terrible. And then they drove away. So we knew we did it. Oh no.

Chantal Roberts:

Well, we're gonna be one of my yeah, this isn't one of my claims, but um we're gonna be looking for a car up in northern New York that has some a lot of damage.

William Auten:

It's a lot of damage covered in uh fryer oil, yes, because it took out took out all their fryers.

Chantal Roberts:

Oh my, oh my, yeah. Um, because all of that can happen. Um and again, it's not just a winter thing. Um, I've had a lot of claims, well, not a lot, but claims where people have lost control of their car, drunk driving, whatever, and they have gone through a living room, for example. And again, you and I have talked quite a bit. Um, often the uh auto insurer will not want to take on the building, you know, the repair of the building. Well, I mean, that is the property damage from your insured driving through my living room or my kitchen or, you know, whatever. However, the insured, uh, being the homeowner or your favorite diner, could also file a claim with their property insurance, get everything repaired, and then they subrogate against the auto owner.

William Auten:

Yeah. Um, so I've been on both sides of that claim, that type of claim. And um my advice is that if you own the building, um you're better off going through your own insurance carrier and letting them subrogate because for a lot of reasons. The biggest one is you're gonna have less of a fight with your own insurance carrier than you will with the other side because they're gonna be arguing, potentially arguing, that some of the some portion of this was not their insured fault. They can maybe say, Well, there was a deer that ran out, and that was an act of guy, or some other car made us lose control. You know, you don't want to have to deal with right that fight. Let your insurance company deal with that.

Chantal Roberts:

Yes.

William Auten:

Uh, even if they did accept a hundred percent liability, now you're subject to um actual cash value only. Thank you. Yes, I was getting ready to say that. Yeah, you've got your um if you have replacement costs on your home, you're gonna wind up with more benefit from your own policy because you pay extra for that type of coverage.

Chantal Roberts:

And and you mentioned this, um, and and we're talking as if we're talking to the insurance, but also as an adjuster, you should know when you are pursuing subrogation against that at fault party being the auto owner that has run into your insured's building or home or whatever. You're absolutely right, Bill. They only have the auto only has ACV, um, actual cash value for third-party liability, it's it's not RCV. So while you, as the insurance adjuster for the homeowner or the restaurant may have paid RCV, uh, go ahead and subrogate for RCV, but understand that if if the auto owner uh the atfault carrier takes 100%, they're only going to pay ACV. So that don't get upset. That's the way their policy is written.

William Auten:

Well, that's the that's all that's owed under the law, is that they only owe to indemnify you for the you know, the actual cash value is kind of like um what your financial uh loss is, really. Um and that's a whole other conversation, I guess. But exactly that's all they owe you. So um absolutely.

Chantal Roberts:

And and and remember, our replacement cost value, our insured pay a premium for that. They're you know, they're not paying a premium to the other insurance company to get replacement cost value. So um, again, that's the that's the difference when we're when we're talking subrogation.

William Auten:

And you may say, well, I'm not really worried about the depreciation on it because my house is brand new, so they can't depreciate it by much. Well, you know, depreciation may be in the eye of the beholder, too. And do you really want to have to have that argument with some other adjuster? And you really want to have your claim reduced by that much because chances are it's going to be a lot more than your deductible would be on your own policy.

Chantal Roberts:

Yes.

William Auten:

And your deductible you will actually get back if your carrier is successful in subrogating.

Chantal Roberts:

Exactly. Yeah. So as the uh insurer for the fault-free party, the homeowner, the restaurant, whatever, you do need to subrogate for everything, even the things that you don't necessarily pay for. Um, that's what we did at least. You know, the deductible, if there's anything that we didn't happen to cover, non-coverable expenses or whatever, I say, hey, this is what you would owe directly to the insured so that the insured would be wholly indemnified. This is what you owe us. And and then we get into a whole different podcast about how to make the insured completely whole, but we're talking about winter storms.

William Auten:

Right.

Chantal Roberts:

That's what we're talking about.

William Auten:

Right. You you're good to steer it away because I I had another story about it that we won't get into that. Oh my goodness, that for another day.

Chantal Roberts:

Absolutely. So we're talking too about um parking lot losses. I mean, it also you got cars in parking lots, you've got people who are slipping and falling in parking lots. And we did do a slip and fall one earlier.

William Auten:

Um, so you even have stationary objects like uh shopping cart correls and um bollards that protect gas. Is that what they're called? Bollards? Yeah, those pipes that stick out of the ground, they're painted yellow and they're full of concrete. Yeah, you can call them bollards now if you want.

unknown:

Bollards.

Chantal Roberts:

B-A-L-L-A-R-D-S.

William Auten:

I think it's B-O.

Chantal Roberts:

Oh.

William Auten:

B-O-L-L-A-R-S.

Chantal Roberts:

So it's kind of like bollocks. Kind of ball. Okay.

William Auten:

Yeah.

Chantal Roberts:

Okay. All right.

William Auten:

Uh so um all those stationary objects are things to uh to slide into if the condition, if you're going too fast for conditions. Um so don't do that.

Chantal Roberts:

Yeah, don't do that. Um, you know, and there are again, we uh talk about the duties that are owed, which which we've again we've spoken about these sorts of things. You don't have to, as the store owner, have to go out in the middle of a blizzard uh and put down salt or whatever. And by the way, FYI, uh, I have heard that again, this year there is a shortage in the northeast for salt, ice melt, you know. Uh, and I think that's something that should be taken into consideration when we're talking about these sorts of determining negligence and determining how much negligence. If if we are all hoarding it down here in the south because we don't know what to do, um, and oh my gosh, it's Snow Megiddon. Um, so we get you know 25 packs of it and and things. Um, so the North doesn't get it. I think that that's something that that we as adjusters should take into consideration.

William Auten:

It's uh it's happened, it happened last year.

Chantal Roberts:

Yes.

William Auten:

Yes, and we have cases right now from last winter where we're we're kind of making that argument that look, our insured was salting every day until they ran out of salt. And then when they ran out of salt, there was nothing more they could do.

Chantal Roberts:

Right. Because it's there's a shortage. And then that's when, like we were talking about earlier, you need to be aware as the person who's walking in, you don't walk into a store in high heels or something.

William Auten:

So personal responsibility is a thing.

Chantal Roberts:

Excuse me. I was coughing. Um so what about you know pedestrian duty versus uh vehicular duty?

William Auten:

Pedestrian duty versus vehicles. Well, usually you're pedestrian are you uh in in what kind of scenario, I guess.

Chantal Roberts:

Well, I guess usually um pedestrians have the right of way in most cases, you know, uh regardless, even if there's not especially at a crosswalk or whatever. Uh but I don't know, you're just not supposed to just run them over because they're crossing in the middle of the street. Right. It's just like, I don't know, that kind of thing. Um especially like I don't know, parking lot issues. There are people walking versus you trying to pull in and uh get around a person or something like that.

William Auten:

I'm sure there's a lot of case law out there involving pedestrians who step in front of moving vehicles and um and whose fault that might be. Um and I'm sure the arguments go something like, well, the the operator of the vehicle has a higher duty of care because they're operating this, you know, three or four thousand pound machine at speed. And um you know, they have to be aware that uh pedestrians can walk out into the road and and they need to be able to uh operate safely if that happens to avoid that that collision. I think that's pretty much how the argument goes. There may be some cases out there where the driver could not have done anything that the the you know kids that run between parked cars, you know, the the chase the ball, you know. Um but I I think in most cases you're gonna find liability on the uh uh heavier liability on the on the driver car. Yeah, for sure. Yeah.

Chantal Roberts:

So and and keep in mind we're in a if we're in a parking lot, you shouldn't be driving that fast, regardless. But two, um, yeah, if we're talking about children, even on a street, uh children always have a higher, you know, threshold of duty, like they would if uh it was a uh I don't know, a um oh, what am I thinking? Like trespass or or something like that. They're not really considered trespassers because they don't know any better.

William Auten:

So there's one pet peeve I have. There's a town, a municipality locally, uh it's a it's a small city, it's um kind of a big village, but it's technically a city. And they installed these crosswalks with yellow signs and yellow flashing lights, pedestrian crosswalks across four lanes of travel. And um what I noticed is that and the speed limit's only 30 miles an hour. Um but what I noticed is some people just stepping out into traffic because these flashing lights are there and uh one woman has been killed.

Chantal Roberts:

Oh no.

William Auten:

There may have been other um other accidents, but I know at least there's one fatality. There may have been more. I think I think that there is some responsibility on a person crossing a busy highway, no matter what signage is there, to at least look, you know.

Chantal Roberts:

Yeah, oh absolutely.

William Auten:

I again make sure you're not gonna die.

Chantal Roberts:

Right. And again, um, it's hard to argue if if the person is deceased, but if you're able to take a recorded statement of the other person, the pedestrian, yeah, again, it all comes back to just because you were in an accident doesn't make you 100% not negligent. You know, you still have the duty to look both ways to cross the street. Um yeah, just like the person in front of you has a duty not to slam on their brakes. Now they they can maybe a child did run out in front of them. Um, they've got a duty not to hit the kid, um, but they also have a duty to be driving at a safe speed, just as you have a duty to not be following too closely. I mean, it it's all a balancing act, but that doesn't make you 100% at fault all the time.

William Auten:

Um when the weather's bad, all those factors get have to be adjusted. Oh, absolutely. Because now where three car lengths was a safe distance, now maybe it's five, six, seven, eight. Exactly, depending on and that you're actually going much slower. Everybody collectively has to be going much slower.

Chantal Roberts:

Um yeah, so I am wondering um about like an adjuster checklist. Like what we're we're giving a lot of information for our listeners to to think about, but is there something that they should be getting 100% of the time on these kind of claims, or maybe not 100% of the time, but I mean the majority of the time.

William Auten:

Sure. I'm glad you asked because I have five items for a checklist.

Chantal Roberts:

Well, there you go.

William Auten:

Shall I read them off?

Chantal Roberts:

Yes, please.

William Auten:

All right. Uh, weather reports at the time of the loss. Um, try and get a report that shows you hourly and uh so that you can actually pinpoint what it what the weather was doing at the time of the accident. Um okay, I'm gonna interrupt real quick.

Chantal Roberts:

I recommend uh weather underground because uh it does have, and it's like I think it's wxunderground.com, but you can Google Weather Underground and it'll get you there. But it does have a feature if you if you scroll down where you can put in a particular day, uh and uh and it'll give you the time, the wind speed, all of that kind of stuff. It's not quote unquote official. You would probably need to get an engineer if it got to be a serious case like a death, but at least at that particular point in time, you could get that weather report, even for a time.

William Auten:

Um, so we use that to um they pull their data from um NOAA so. So the website we use is nce.noa.gov. Perfect. We'll put that in the show notes. That's the National Centers for Environmental Information, the National Oceanic and Atmospheric Administration. Yeah. Federal website. So it was down for a piece there when the federal government shut down. And uh right now we're still um a little disturbed because all our reports uh are still held up in their system some for some reason. Uh but that's where we generally go for the weather reports. And uh and you can get them certified there too. Um you can just print them, but uh but if you get them certified, you get an actual document that states that they are certifying that it is the correct data for that day.

Chantal Roberts:

That's great. Good information. We'll put it in the show notes. Yeah. Sorry for interrupting, but what's the second one? What's the second one?

William Auten:

Second one. Um visibility conditions. So the weather report is probably gonna tell you what the fog conditions or snow or rain or whatever. Um, and then time of day was this before sunset, after sunset. Um, all those factors are gonna make a significant difference as well. And um just environmental conditions. I don't know if you remember um a couple years ago we had the the uh smoke from the wildfires up in Canada. Yeah, actually created a fog around here that was just like a regular foggy day. It was really bizarre. People were driving around with headlights on and everything in the middle of a summer day.

Chantal Roberts:

Wow.

William Auten:

So um, you know, be sure you're aware of those conditions and you should be if you're talking to the people involved, hopefully, they'll they'll be able to tell you what was going on there. And then you can do some searches of news reports and weather reports and all that to verify what you're being told.

unknown:

Okay.

William Auten:

Uh third, uh road maintenance timing.

Chantal Roberts:

So where would we get that? Would we contact like the the county or the state?

William Auten:

It depends on the road that you're on. If so, I could say uh so we live my house, is on it converges at the intersection of two towns. So we have uh we have a town, uh one town plows one part of our road, and then because we live on a corner, and then the other town plows the other road. Um so it's it's either one of the local towns for us. Uh it could be county if it's a county road, or it could be a state road, like the New York State throughway, for example, is all state vehicles and and plowed by state uh employees. So you would have to get records uh from there. That would in New York, that would just be a FOIL request uh to that min municipality.

Chantal Roberts:

That's a Freedom of Information Act, which we did have.

William Auten:

Yeah in New York. Okay. But same thing pretty much the same thing. It's just uh the FOIA is uh, I believe a federal uh regulation. Um let's see, um vehicle damage patterns. So if there is a um impact damage to the rear bumper of a car, chances are that they were rear-ended. Yes.

Chantal Roberts:

Ah, you know.

William Auten:

Uh unless they unless they spun around and slid backwards into a guardrail. True. So uh, but anyway, the the location of the damage can tell you a lot about um the mechanics of the accident and and what really happened. If all four corners of the car were damaged, chances are that thing was spinning out of control somehow.

Chantal Roberts:

I am looking. We have done a freedom of information um episode.

William Auten:

Yes, we had we had our expert on who specializes in that.

Chantal Roberts:

And so I was trying to see if I could find it real quick, and that's what I'm looking off screen for. And of course, naturally I can't find it, but that's okay, no big deal. Um there you go. We'll we'll just look for it, I guess, is what I'm gonna say. Okay, so anyway, you said vehicle um damage patterns, very important. Um road maintenance timing, also important. I would also say um with that, you can look for because this is what tripped my my mind to start going with the the FOIA or foil um information is to uh look for like the cameras, um, because some light poles or or or light what are those um signal lights have cameras on the top or whatever, and you can you can see w what the conditions were like.

William Auten:

Yeah, there could be uh camera footage uh in local stores. We've done that before. You know, an accident happens into in front of a convenience store. We go in and ask, do they have any footage from that day? And if they do, can we get a copy of it? Um sometimes they're very helpful, other times they'll say, Well, uh corporate says you need a subpoena. So whatever. Um trucks, uh plow trucks, a lot of them have dash cams and things of their own as well. And there may be footage from that if um if that's relevant, you know, if they're close to the accident or going by the accident.

Chantal Roberts:

Right.

William Auten:

Um and then ultimately witnesses, you know.

Chantal Roberts:

Yeah, perfect.

William Auten:

Uh a statement consistency with physics is the fifth item. So you're talking to an insured or claimant and they're describing how things happen. And uh if it just doesn't make physical sense that the accident could possibly happen in the way they're describing, um, you know, maybe but maybe they're just having a hard time verbalizing the mechanics of it because when you're sitting in a car experiencing it spinning or rolling or being impacted, um what you are feeling may be different than what actually is happening. Right. It could be some latitude has to be given uh to the to the person giving the statement. But ultimately, um you've got to decide whether what they're saying could possibly be um uh in line with what you're seeing in terms of the position of vehicles and damage and all that.

Chantal Roberts:

Yeah, yeah. And I would say um the statement consistency with physics is also going to be closely tied with your vehicle damage patterns because it should, you know, match. And remember, physics doesn't necessarily change, not that I know of, um, except if we're doing like some kind of quarks thing, and I don't even want to go into into that sort of well, when diesel fuel spills on an icy road, physics get a little weird. It does get a little weird, but also it's every motion stays in motion kind of deal and equal and opposite, yada, yada, yada. So there you go. Um, that's the extent of my physics knowledge. I took football physics at Baylor. It was, it was, yeah, yeah, yeah. It was, it's, it was called football physics, and it was the um basically the the physics for all the liberal arts majors and the football players. Um, so all the football players were guaranteed to get an A. Uh, the rest of us just basically either got a C or better. Uh but yeah, he he he would use Star Trek and and football to explain physics. So not the not the pre-science or not the science major physics that was obviously harder, um, not the math people major, you know, that took it that was obviously harder. No, we got um we got Star Trek and uh football to explain physics to us.

William Auten:

Well to wrap things up, I've got three talking uh this is talking lines here, but these are three key points that we want to drive home for this episode. One is that conditions matter than posted speed limits. So if your insured says I it wasn't my fault, I was I was going the speed limit. Well, maybe you shouldn't have been going that fast. Right, right, right. Uh tickets, uh tickets inform claims, they do not decide them. Yes, I agree. It kind of gives you some information about what happened, but doesn't necessarily point to who was at fault. And then the last one is um winter driving increases the duty to anticipate. So that's the duty that we all have. And if you breach that and you fail to anticipate properly, um you can't blame the weather.

Chantal Roberts:

Absolutely. I would totally agree with all of that. So this uh great talking lines and things to consider for our adjuster checklist, and uh we will be sure to put the uh notes or the websites in the in the show notes. So, you know, winter claims, you know, they look kind of simple, but they're not really. There's there's a lot of things that need to be balanced, a lot of ideas that need to be balanced, a lot of conflicting ideas often that needs to be balanced. And we have to be really disciplined in our decision making in an in our investigation, making sure that we are being fair and unbiased, because that's literally what we're supposed to be doing. Because even if the insured says, oh, it's totally not my fault, if the evidence shows that it's their fault, we need to go ahead and accept liability, even though the insured's gonna be mad at us.

William Auten:

Right.

Chantal Roberts:

That's what we got to do. Uh, because it does prevent us from making bad decisions, which may end up getting us into a bad faith situation. And then I get involved and really I'm doing this so that I get I put myself out of a job, you know. Um, so we're gonna continue on with our winter talking uh next podcast, which will be on February 12th. We're gonna be talking about heating hazards, fires, and uh the facts of like having maybe a hostile fire rather than a friendly fire and homeowner liability. So again, uh thank you, Bill. So um love the outfit. Love the fact that we're gonna maybe I'll do a heating thing. I don't know. Anywho, um, join us in two weeks.

William Auten:

You could dress up as the tin man.

Chantal Roberts:

Oh, I could. I could work, yes. Um, so join us. Be sure to like, sub, um, subscribe, comment. Yeah, all of that kind of fun stuff. Yeah. We'll see you later.

William Auten:

All right, take care.

Chantal Roberts:

Bye.

William Auten:

Thanks for joining us on the Art of Adjusting Podcast, where we talk about life as an insurance adjuster. Hit that subscribe button real quick and tell all of your adjuster friends to check this out as well. For independent adjusting services, go to www.autin.claims. And for anyone interested in working as an independent liability adjuster, go to the contact us tab to join our roster.

Chantal Roberts:

So this wraps up another Art of Adjusting podcast. If you enjoyed this podcast or this episode, please give us five stars and a review. It does help the algorithm pick us up. In the meantime, you can contact me at theartofadjusting.com for consulting and training purposes.

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Chantal M. Roberts, CPCU

Co-host
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Heather Blevins, CPCU

Co-host
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Sandy Avina, MBA

Co-host
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William Auten

Co-host
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Nicholas Kearns

Editor