There is a public myth that all persons bringing a claim or suit in response to a low-impact collision must be faking because something so minor cannot possibly cause serious injury. This is a myth because it has become a popular opinion, but also because it is not true – in fact, nothing could be further from the truth. The science shows that whether an vehicle occupant suffers injury depends on a variety of factors including prior susceptibility to injury because of age or prior degenerative issues, the actual speed of the vehicles, the weight of the vehicles, the angle of impact, and whether the occupant was anticipating the impact. While it is true that some people walk unscathed from serious roll-over collisions, it is equally true that some people suffer serious injury as the result of what appears to be a relatively minor impact. No two collisions are the same, and no two vehicle occupants are the same, and the probability of injury given a set of parameters must be considered and determined on a case-by-case basis.
However, this determination requires actual critical analysis. It is easy to just make assumptions when we make our decisions. The assumptions that most people make regarding low-impact collisions are wrong and are shaped by a variety of factors.
Insurer efforts designed to discourage lawsuits
Global insurance companies have an interest in externalizing costs and shirking accountability in order to maximize profits. To that end, they have spent billions of dollars during the past five decades peddling the myths that there are too many lawsuits, and that the nation is full of complainers looking for a hand-out. By and large, nothing could be further from the truth. Motivating these efforts is the critical fact that these insurance companies do not want to be held accountable for the ways they pass the cost of doing business onto the public because that would affect profits – and more importantly, executive bonuses. The primary and most direct method that members of the public have at their disposal to hold these giants responsible is through the civil justice system.
For over five decades, these leviathans have flooded the local and national news by paying media outlets to plant false and misleading “human-interest” stories about frivolous lawsuits. These conglomerates have spent billions of dollars vilifying trial attorneys as greedy, amoral opportunists looking to make a quick buck on frivolous claims. And the efforts by the insurance industry to discredit the civil justice system have one aim – to reduce payments on claims, legitimate or otherwise.
Do you honestly think “You’re in good hands with Allstate” when Allstate increases profits by denying or refusing to pay full value for legitimate claims?
Do you really believe that “like a good neighbor, State Farm is there” when State Farm’s entire business model is based on making money by collecting as much for premiums as they can while simultaneously paying out as little as possible on claims, legitimate or otherwise?
Do you really think that the trial attorney who has spent $50,000 in his own money in case costs, not to mention his time and office costs, is some opportunist who is willing to risk it all on a “frivolous claim”?
Do you really think that the civil justice system itself does not have a mechanism to deal with frivolous lawsuits prior to the time they are ripe for jury trial?
Do you really believe the myth that lawsuits cause your premiums to go up? Look at the data. In all states where various types of damage caps were put in place, premiums did not decreased. The only thing that happened was insurance companies posted larger profit margins and executives got bigger bonuses. Insurance companies never pass savings along to the consumer.
Did you know every major insurer is willing to pay $100,000 in legal fees to defend its refusal to pay a $15,000 claim because an army of bean-counters have created an algorithm that shows that over a given period of time it is cheaper to discourage claims by refusing to pay them, legitimate or not, rather than just pay them?
Do you really think it is in your interest to oppose a private citizen’s use of the civil justice system to hold unscrupulous insurance companies accountable for what they owe under a policy? Unless you are an executive, board member, or a major stakeholder in one of these entities, why would you think it is your role to act as a gate-keeper to prevent private citizens from getting redress for the harms these insurers promised to pay for?
Profits are the stated purpose of these organizations, and there is nothing wrong with that. Capitalism may be the greatest force for good that any society in the history of humanity has ever known. It has led to improved conditions, increased life-expectancy, and increased literacy across the planet. America is great in large measure because it is a nation of shopkeepers, of small and mid-sized business owners and professionals dedicated to bringing a good or service to market. Most of them do this out of love for family, profession, and community – as well as profits.
But this is a much different sort of capitalism than the neo-capitalism practiced by the global insurance giants, where profits become the sole and exclusive purpose of the organization. These are entities upon which we all depend for coverage in case of loss. Where short-term profits are the only motive directing the conduct of these companies, there is great danger that injustice and harm to the public will result. Insurance companies have been granted a legal monopoly over the market. All drivers on the roadways are legally required to purchase auto insurance in case of loss. In exchange for this market monopoly, the insurance industry accepted a public trust to pay for harm when there is an accident. This was designed to prevent private citizens from extreme hardship in case of loss, and to lessen the overload on public resources. If the desire for short-term profits outweighs the long-term duty of care, the public is forced to pay for loss while executives and shareholders keep the premiums.
Public perception regarding lawsuits has been definitively and diligently shaped in the negative during the past fifty years by an industry with an unlimited supply of money, whose primary aim is to reduce accountability by externalizing the cost of doing business. This enemy of the commonwealth has been poisoning the well of public opinion for so long that the people are generally unaware their water has been poisoned. Unfortunately, the “frivolous lawsuit” bias has taken root and has become almost hard-wired into the collective consciousness of the average American.
Modern bumpers are designed to hide the force of impact
With respect to advocating for the legitimacy of low-impact collisions, compounding the basic bias against lawsuits is the fact that plastic automobile bumpers are intentionally designed to hide the force of an impact and minimize cosmetic damage to a vehicle. It is common knowledge to automotive design engineers, government regulators, and others in the industry that bumpers are specifically designed to absorb crash energy without showing any damage to the bumper itself during a low-speed impact.
It is very difficult to argue an impact caused injury where there is no visible evidence of impact. This is why the insurance industry actively lobbied governments and automobile bumper designers in the 1970’s and 1980’s to design bumpers that do not show damage when there is a low-speed impact. The rationale given was that this would save the consumer billions of dollars a year in property damage repairs that resulted from low-speed collisions. What was not mentioned was that the insurance industry itself was required to pay for repairs under the standard auto insurance policy terms, and therefore stood to make enormous profits when the bumpers were redesigned. When bumpers were redesigned, this seemingly minor victory allowed the insurance industry to decreased not only the cost of payout on millions of property damage claims, it also provided a basis to push, during the next half-century, for decreased payouts on bodily injury claims.
When combined with the “frivolous lawsuit” bias, the bumper design bias compounded the public’s belief that certain types of impacts cannot cause injury. While this assumption is scientifically unsound and disprovable, it is nevertheless prevalent, and must be dealt with by every advocate who faces it.
Heuristics and pre-conceived bias
A “heuristic” is a mental short-cut that allows people to rely on assumptions to make decisions quickly and efficiently. It is a mechanism hard-wired into the operations of our minds. It is useful for making decisions about things like what to wear, what to eat, which route to take home from work, and whether to trust a co-worker with a task. There is a wealth of research on heuristics. Unfortunately, in addition to being useful rules of thumb, heuristics can also contribute to prejudice, stereotypes, and biased thinking. Heuristics are an excellent tool for some tasks and a serious impediment for others.
In his excellent book, “Thinking, Fast and Slow,” Daniel Kahneman details the difference between what he calls “System 1” thinking and “System 2” thinking. System 1 is that automatic part of the brain that adopts mental shortcuts to make decisions that are either basic or exigent. System 2 is that slow and deliberative part of the brain that must use effort and attention to get to its decision. A study of System 1 thinking shows it is vulnerable to mistakes in the way information is processed. The processing mistakes are all based on the fallacy of assuming that current conditions are the same as similar past conditions, and therefore the two must be the same. These assumption based processing mistakes, or biases, take several forms such as availability of recent information in the memory, and substitution of a more simple problem for a more complex one. In short, there are some problems that mandate deliberative and logical System 2 thinking, and for which assumption based System 1 thinking are entirely inadequate.
As things sit, global insurance interests have successfully implanted a bias against lawsuits and trial attorneys into the public mind. They have done this by tapping into the latent resentment over the erosion of social values and a growing discrepancy in wealth equality. This powerful interest group has convinced us that the world is full of bad people looking for a handout. Ironically, the very industry that contributed to an erosion of social values and a growing discrepancy in wealth inequality by putting short-term profits ahead of its’ public trust is now telling us that the problem is people who are looking for a handout. How convenient. Insurance companies have spent decades of effort and billions of dollars successfully convincing us that low-impact collisions cannot cause injury, that they are friendly, quirky, funny, but harmless entities whose sole interest is protecting our interests, and that the world is full of bad people who just want something for nothing.
Ideas matter. Unfortunately, the misplaced biases against lawsuits, trial attorneys, and low impact collisions are bad ideas that hurt people. These biases make it extremely difficult to advocate on behalf of people who are legitimately injured as the result of low speed car crashes. These biases allow the insurance industry to escape accountability for payment to those injured by the fault of another. Many, many people suffer from chronic pain for which they do not have a pathway to relief because of the insurance industry’s deliberate poisoning of public opinion, and because of the blind spots in our ways of thinking.
The purpose of this written piece is to say something that needs to be said – we must think for ourselves. It is hard work and it requires us to develop new skills and to forego assumptions that we rely on to make us feel safe. It is scary to exercise independent thought – we must do it anyway. It is scary to examine our assumptions – we must do it anyway. Thinking for ourselves may lead us to new associations of people and away from old ones – we must do it anyway. Thinking for ourselves requires us to explore new possibilities when it comes to beliefs, places, cultures, and possibilities, which is not for the faint of heart – we must do it anyway. It requires us to question our sense of identity – we must do it anyway. It ultimately leads to the examination of deep questions of meaning and purpose – we must do it anyway.
Do not be a prisoner to convention. Do not accept appearance as reality. Look beneath the surface. Do not accept the claims of insurance elites who are seeking to use your pain as a weapon against innocent people that are suffering and need relief. And most importantly, do not allow you to fool you. Use the great power of your faith, your curiosity, your training, and your intellect to guide you in an exploration of the truth that will enlighten both you and the world around you. Bring something new into the world – your own hard-fought individual experience and point of view.
The alternative is easy. It means not questioning. It means not disturbing the status quo. It means relying on “System 1” thinking for the most important decisions we make. But it also means accepting a life lived in a mental cloister of safety and security and not in the uncertain and exciting field of intellectual exploration and adventure.
This is the issue of faith. None of us can escape the issue of faith. Either we have faith in the proposition that there is a real-world filled with objective facts, meanings, and values that we can discover through the exercise of independent thought, or we adopt conventional assumptions which hide us from doubt, from darkness, and from the awful thought that reality is ultimately relative, it proceeds from nothing, means nothing, and passes away without consequence. Faith is at the crux of life. It takes faith to explore. It takes faith to exercise courage. And it takes faith to think for yourself.
So, have a little faith and think for yourself the next time
a dishonest insurance defense attorney tells you that a low-impact collision
cannot cause injury, or you see a news story telling you that there are too
many frivolous lawsuits, or you see some politician telling you the real
problem is “those people,” the ones that are not like us.
 See, Hallmark v. Eldridge, 124 Nev. 492, 502, 503 (2008) (biomechnical opinion speculative and unreliable where it fails to consider the vehicles starting positions, speeds at impact, length of time in contact, or angle of impact, and biomechanical expert failed to physically examine injured party or consider past medical history); see also, Happer et al., Practical Analysis Methodology for Low Speed Vehicle Collisions Involving Vehicles with Modern Bumper Systems, (SAE Technical Paper Series 2003-01-0492).
 See generally, Augenstein et al., Characteristics of Crashes that Increase the Risk of Serious Injuries (Association for the Advancement of Automotive Medicine, 47th Annual Proceedings September 22-24, 2003).
 https://philosophia.uncg.edu/phi361-matteson/module-4-business-and-the-environment/externalities-and-the-environment/ (last checked Feb. 15, 2020).
 http://www.tortdeform.com/archives/2006/09/the_myth_of_the_frivolous_laws.html (last checked Feb. 15, 2020).
 http://www.centerjd.org/misleading-anecdotes-about-lawsuits (last checked Feb. 15, 2020).
 Croft and Freeman, Correlating Crash Severity with Injury Risk, Injury Severity, and Long-term Symptoms in Low Velocity Motor Vehicle Collisions, RA317, para. 1 (Med Sci Monit. Oct. 2005).
 David J. Berardinelli, From Good Hands to Boxing Gloves: The Dark Side of Insurance (2008).
 State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 419-420 (2002) (“we must acknowledge that State Farm’s handling of the claims against the Campbells merits no praise. The trial court found that State Farm’s employees altered the company’s records to make Campbell appear less culpable. . . [.] ‘State Farm’s decision to take the case to trial was part of a national scheme to meet corporate fiscal goals by capping payouts on claims company wide.’ ‘[t]his pattern of claims adjustment under the PP&R program was not a local anomaly, but was a consistent, nationwide feature of State Farm’s business operations orchestrated from the highest levels of corporate management.’”).
 https://www.decof.com/documents/the-truth-about-medical-malpractice-insurers.pdf (last checked Feb. 15, 2020).
 National Highway Traffic and Safety Administration, Bumper Q&A’s, Q. 1, Q. 2 & Q. 11 (2015) (Q. 1: “When a low speed collision occurs, the bumper system [is designed to] prevent or reduce damage to the car.” Q. 2: “The car bumper is designed to prevent or reduce physical damage to the front and rear ends of passenger motor vehicles in low-speed collisions.” “[Bumpers] are not a safety feature intended to prevent or mitigate injury severity to occupants in passenger cars.” and Q. 11: “[There is no way] to determine how fast a car was going during a rear end crash based on the damaged bumper(s).”)