A year had passed since the accident.  The facts seemed clear enough.  The extended cab pick-up owned by the deceased had rolled over in Mexico on the way to Rocky Point.  The front seat passenger had sustained serious injury while the two rear seat passengers had only minor injuries.  All involved had provided statements that Jesse was driving when the accident happened.  They admitted they had all been drinking, but Jesse was the only one with a documented BAC (Blood Alcohol Content).  No one was admitting they had anywhere near the alcohol level in their system to that of the driver.  Postmortem blood tests revealed an alcohol level for Jesse of 0.28, very high by any standard.  Obviously, he had drifted off the road and lost control in a state of severe intoxication.

The issue now was to settle the claim for serious injury to David, the front seat passenger.  Jesse had only the minimum limit policy of 15/30, meaning David could receive a maximum of $15,000 for his injury claim against Jesse.  Jesse's insurance company had long since paid their limit to David through his attorney.  They had also settled the minor injury claims for both rear seat passengers and closed their file on the case.  The only remaining claim was that of the Underinsured Motorist Coverage under David's own auto policy.  Under this coverage David had limits of $300,000, all of which was available.  Although he had recovered for the most part, David's medical bills exceeded $100,000 for the surgeries and hospital stay once he was airlifted from the scene to Yuma.  His claim would be easily worth the policy limit, particularly in light of the aggravating liability factor of Jesse's alcohol level.  The company's legal counsel had recommended settlement without further delay.  Additional exposure in the form of Bad Faith damages was already being threatened by David's attorney.  David's attorney was no stranger to this type of litigation and would gladly delay his fee for several years if necessary to roll the dice with a jury against the Underinsured Motorist carrier.  This is the most dangerous of lawyers; he doesn't need or care about the money, it's all about the challenge of winning another big verdict against the insurance company.  In fact, this particular attorney donated much of his time and money to various charities and causes.  This was definitely not the attorney to mess with on a potential Bad Faith case.

So why was the adjuster calling requesting another interview of one of the rear seat passengers?  Mike had already given a recorded statement soon after the accident clearly indicating Jesse was the driver as far as he knew.  Mike had claimed that he fell asleep in the back seat about ten minutes before the accident at which time Jesse was driving.  The other rear seat passenger, Ramon, had stated he was dozing when Jesse started weaving back and forth on the road for fun before the accident happened.  This further aggravated the liability to the point of reckless disregard on Jesse's part.  What could possibly be gained by re-interviewing Mike?

A good insurance claims professional is in part a product of their experience, training, and mentoring by superiors.  The intangible factor, however, can't be taught or learned by experience.  This skill is there on the first claim they ever handled.  It's always there throughout their entire career.  It is a skill that cannot be defined or measured with words.  It is instinct.  Good cops, soldiers, firefighters and leaders of all kinds have this same instinct.  It is a gift.  Employers and superiors often describe these people as "naturals." Sure, they make mistakes, but often they rise so far above in a given situation there can be no doubt they have "the right stuff." Cynthia was one of these talented professionals.  She seemed to know where the needle in the haystack was in any given case.  Small wonder she had been promoted so quickly to Senior Litigation Specialist.

"Phil, there's something not right here.  I have been reading the statements and something doesn't smell right.  I think Mike knows the truth and I want you to talk to him." I sensed the same feeling after reading the file and considering what little physical evidence existed. The vehicle had never been returned to the United States since it was an obvious total and had no collision coverage.  No scene photos or diagram had been prepared by the Mexican authorities. The police report was cryptic with no useful information.  While often the injuries will reveal occupant position at the time of collision, this was not conclusive in this case.  Neither the driver nor passengers had been wearing seatbelts.  All were outside the vehicle or moved from their post accident locations when the authorities arrived.  No witnesses were present.  The vehicles arriving after the accident were unidentified.  There was very little to analyze other than the statements taken by phone of the rear seat passengers.  David, the front seat passenger had already retained counsel before he could be interviewed.  He later repeated the facts as provided by Ramon, that Jesse had started weaving back and forth as a prank and then lost control.  The vehicle had rolled over Jesse causing the fatal injuries, but no one knew how many times the vehicle rolled or at which point he was ejected.  Without the vehicle or at least better detail from those present, accident reconstruction would not solve the problem.  The actual scene location was not even known for certain, only that it was somewhere about thirty minutes from the border.

What bothered us about the statements were not so much the basic facts, which were all consistent with each person involved.  They had plenty of time to discuss their story before the authorities arrived.  There was something about the presentations and demeaners that didn't seem consistent.  Mike and Ramon had tried to be vague and confused, as if trying to avoid guilty knowledge, even concerning events immediately after the accident they would certainly remember.  David, who was far more seriously injured, seemed to have too much detail as if he was trying to convince the interviewer how the accident happened.  All four men had been the best of friends.  They all worked third shift at a large warehouse facility and often hung out or went on week-end trips together.  Mike and Ramon showed their grief over Jesse's death as their voices cracked when describing seeing Jesse after the accident.  David seemed to have disassociated from his grief and was more controlled emotionally, describing the facts in a detached manner.  Of course, this all could be easily explained as simple differences in personality, background, or post traumatic reaction.  Still, both Cynthia and I had learned from experience to always trust your gut, with an open mind.

After reviewing all the facts and talking to an expert in both accident reconstruction and biomechanics, I called my friend Don.  Don was one of the best detectives I knew and a very good interviewer.  He came up with a possible hook I could use if Mike balked.  "I'll bet Mike has been talking on the phone a lot lately to David," Don said.  "You can bet David is sweating that Mike could spill the beans and he ends up with no claim.  While you're interviewing him on tape, ask Mike when the last time he talked to the other guys.  He won't figure out where you're going with that until you ask for his phone bills.  Then he can try to explain why he needed to lie about it." I also had an idea.  I doubted Mike realized that by trying to help his buddy David, Jesse's widow and children would get no financial help and would have to live with the belief that Jesse caused his own death.  I was hoping Mike was a basically good person who wanted to do the right thing and got caught up in a bad decision.

I first had to locate Mike since he had moved out of state some time after the accident.  I found him in Ontario, California, living alone and working as a supervisor in a warehouse facility.  Mike was surprised when I called and asked if he would mind giving me an interview which we needed in order to complete David's pending claim.  I explained that there were a few questions I needed to clarify before the claim could be resolved.  Due to the size of the claim, the company had requested I conduct the interview in person.  He accepted this explanation and we scheduled our meeting for his day off later that week. Mike seemed nervous and questioned why this couldn't be done by phone.  "What did he care," I wondered, he's not paying my bill.  I had a feeling Mike was not up to holding in the secret much longer.  I was also sure he would call David who would in turn call his attorney almost immediately after we hung up.  I spent extra time explaining to Mike that the company was not going forward with David's claim unless we completed the meeting.  The only other option would be to take his deposition after litigation commenced.  Mike didn't seem interested in being grilled by attorneys.  As I always do with difficult interviews, I spent considerable time getting rapport and gradually getting a feel for who he was as a person.  I never rush this very important part of an investigation.  I share personal information as well, to a point, to build a relationship that will hopefully uncover the truth.  I never lie to anyone about who I am as a person or what my values are.  While I have been accused of not telling the person my true purpose prior to the interview, I defend this argument very simply.  "If you are telling me the truth I am your friend.  If you're lying then don't make it about me.  My job is to find the truth."  Liars always claim foul and act the most offended by the alleged insincere motives of others when they are exposed.  I guess we are supposed to tell them exactly where we are going so they can adjust their story accordingly.  Sorry, that's not going to happen.

The meeting with Mike lasted over four hours.  I had made sure that he no other plans that day and so couldn't easily excuse himself if things got warm.  I try to play all the possible scenarios that could hinder the interview in advance.  Timing, setting, and most importantly rapport are essential to a successful interview.  Many investigators will not spend the time or effort to preplan the interview to this extent.  You can either do things fast or do them right, but rarely both.  As planned, during the recorded statement Mike stated that he had not spoken to any of his friends, including David, since shortly after the accident.  After the recorded portion of the interview I told Mike the way the insurance coverage worked.  While David would get $300,000 from his own insurance, it would be at the expense of Jesse's family.  I already knew that Mike felt badly for Jesse and wanted to do the right thing, but the unknown was what David had told Mike.  David's attorney should not have spoken to Mike and especially not given him advice on whether to cooperate, much less what answers to provide.  I had a feeling that David's attorney was ethical and honest, although one tough opponent.

Cynthia and I had suspected that David was in fact the driver at the time of the accident.  As I said, it's not something you can quantify, you just know.  When I felt the time was right I looked at Mike and asked him straight up, "Mike, what really happened?" He thought a long time and then repeated the question as a statement.  "What really happened," he said and paused a long time, breathed deeply and told the truth.  Jesse was drunk by the time they got near the border and they were all concerned they would get stopped after crossing.  The Mexican authorities are not very pleasant when they catch a drunk driver from the US side.  David slid over and began driving before they crossed the border.  About thirty minutes later everyone was getting tired and began dozing off.  They had worked third shift the day before and left right after work to enjoy the week-end.  David started getting squirrelly while trying to stay alert.  He began weaving back and forth on the two lane paved road which was not in good condition to begin with.  The truck hit a pot hole.  David lost control and the truck rolled several times to the right.  Jesse, who was not wearing a seatbelt, was ejected and the truck rolled over him.  The others agreed to say Jesse was diving as they were afraid David would be arrested and charged with Jesse's death.  When they got back to the United States they stuck with the story.  Mike figured there was nothing he could do for his friend Jesse anyway.  He had sent money to Jesse's wife until she moved back to Mexico to live with relatives since she could not support herself and the children.  She did get a small amount of life insurance from Jesse's employer, but that was all.  Mike seemed relieved that he had finally done right by his friend Jesse.  It was not right that his family thaught he had caused the accident.  Actually, I think Mike realized that they all had caused Jesse's death and could have caused their own as well.  They could have at least had a sober designated driver until they arrived at their destination.  It was a group decision and they all blew it.  Mike had stopped drinking since the accident.  I told him he wasn't really missing much except more misery and misfortune.  

I did find out that Mike had called David before my interview.  David had called his attorney and also tried to coach Mike and even promised him money to stick with the story.  To his credit, David's attorney did not call Mike nor have David act as a middleman.  He could probably have talked Mike out of even meeting with me while he turned up the pressure to settle.  The company may have threw in the towel and paid the $300,000.  David was lucky to be alive.  His health insurance had paid all his medical bills and he could return to work.  He just figured he should go ahead and get the $300,000 since he paid his premiums.  David dropped his claim, but wasn't prosecuted for insurance fraud.  It would always be his word against Mike, although Mike had no reason to lie about what really happened.  Criminal cases are much harder to prove than civil actions.  Ramon had returned to Mexico shortly after the accident and would be difficult to locate.  The case had no appeal to a prosecutor.

I do not know if Jesse's widow was contacted.  Jesse's insurance company stated they would make every effort to locate her regarding her claim.  The Underinsured Motorist carrier most likely also tried to locate Jesse's wife since she could potentially now file a claim against David under his liability insurance.  Most importantly, Jesse's children need to know that their father didn't cause the accident.  It would only be fair they know the truth, even though it won't bring their father back  Drinking and driving—a very deadly idea.   

Written by Philip Rust III
Copyright June 2009