Using Social Media in Claims Investigations

The fact that there are currently 850 million Facebook users should prompt claims adjusters to look at the use of social media as a tool to further claims investigations.

The expectation that the number of Facebook users will grow to 1 billion by the end of this year is even more of reason, according to Richard Harer, vice president of Calif. –based Specialized Investigations.

“Social networking research and investigation is a required tool,” Harer said in remarks as one of the speakers at the Combined Claims Conference held earlier this year in Long Beach.

According to Harer, there are various investigative uses for social media including:

• Surveillance cases (photos, habits, activities)

• Locating witnesses, insured, claimant

• Background information like character, habits, activities, financial information

• Identifying relationships and/or accomplices

Harer said he investigated a claim involving a policyholder’s GPS alleged to have been stolen out of his car. Through investigation, Harer determined the policyholder had actually listed the GPS for sale on Craigslist.

While there is nothing unethical with accessing publicly available information, according to Harer, the now easily-accessible information may be dwindling as privacy concerns grow.

“Two thirds of Americans currently have a profile and six out of 10 set their main profile to private,” he said.

Though checking on a claimant via an Internet search is easily done in minutes, Harer warned that adjusters need to watch out for fictitious profiles.

As invaluable as social media is to a claims investigation, adjusters should not use impersonation to trick someone into releasing personal information, the investigator said. According to California insurance code section 791.03, one cannot pretend to be someone he or she is not. There are exceptions where fraud or criminal activity or material misrepresentation is suspected.

Consider this scenario – an adjuster sets up a fake profile but has no friends. Harer said that is a red flag to those familiar with social media. In addition, doing this could create legal issues for the adjuster under current laws and many sites would consider it a violation of their terms.

There are ethical issues to consider, according to Jonathan H. Colman, an attorney with McDowell Shaw Colman & Garcia, a law firm with offices throughout the state. Most adjusters know better than to speak with a represented claimant; yet social media provides just that opportunity with the option of friending. He said there shouldn’t be any communication with a represented claimant via social media sites.

He advised against attorneys or adjusters instructing investigators to do something relating to social media because they may be liable for an investigator’s improper actions, citing the 1973 California case of Noble v. Sears, Roebuck & Co.

Harer said that while a user might enable privacy settings, the information may still be available for discovery in a legal proceeding. According to the New York case of Romano v. Steelcase, Inc. a social media site user has no reasonable expectation of privacy.

While someone’s Facebook postings may be discoverable, adjusters should not expect site owners to willingly cooperate with information requests, the investigator said, citing the 2010 California copyright infringement case of Crispin v. Christian Audigier. Subpoenas rarely get results because social networking providers usually don’t comply, he said.

“[Site owners are] very reticent to give up that information,” Colman said.

Defendants may be able to circumvent subpoenas altogether because the threshold for admissibility is low. According to Harer, courts have held that website printouts need not be authenticated by the website’s owner as per the 2007 California trademark claims case Jarritos Inc. v. Los Jarritos.

Colman recommended that interrogatories should seek to identify an opponent’s screen names and relevant information regarding social media usage. Requests for production should seek blog entries and social media postings and request for admissions should be designed to authenticate such information.

Depositions are also a good time for defense counsel to inquire about a claimant’s social media usage.

Adjusters should be aware that plaintiffs firms are now warning claimants to keep off of social media sites and to post fake information and comments such as, “Wow, my back is killing me. I’ve never been in this much pain.”

He said claimants are posting faked claims on Facebook, knowing that insurance company personnel, defense attorneys and investigators will look for it.

“Others post false information about subjects as form of retribution or retaliation,” Harer said. A jilted lover, ex-spouse or ex-business partner are commonly to blame.

Harer said adjusters should consider creating a social media release, similar to a medical records release, in order to obtain the information early on in a claims investigation. Adjusters can also create a list of questions directed at social media usage that can be asked during a recorded statement.