Disability Insurance Surveillance and Private Investigation:
What Rights Do You Have and
What Surveillance Tactics Can You Expect?

When you think about surveillance, you may imagine a scene from a movie where black-garbed commandos sneak into a house to hide miniature cameras for around-the-clock observation.  Insurance surveillance rarely reaches that level of excitement, but it still does occur.  Unfortunately, it can make the disability claim process much more difficult.

A good example of insurance surveillance comes from a January 8, 2014 Wall Street Journal article,[1] which detailed the report of more than 100 former police officers and firefighters charged with disability fraud for falsely claiming disabilities and collecting Social Security Disability benefits.  Authorities suspected fraud after realizing that “nearly all of the applications had the same handwriting and contained boilerplate descriptions of their ailments.”[2] Authorities tapped phones and monitored the claimants’ online activities to find that they led active lifestyles, despite claiming that they couldn’t hold jobs, drive, or leave their homes.[3] Much of the information the authorities secured came from the claimants’ own blog posts, Facebook accounts, or other social media where they posted pictures and videos of themselves living active lifestyles.

In our age of advanced technology and big business, consumers can expect insurance companies to conduct surveillance of them after submitting disability insurance claims.  Insurance providers don’t always know the difference between truthful claimants and those trying to scam the system.  These days, insurance providers do their own research or hire private investigators to determine the truth of each claim.

Unfortunately, some insurance companies don’t evenhandedly weigh all the evidence and circumstances of your condition, but use the most extreme surveillance snippets to help them deny your claim.  For example, the company may film you when you optimistically go to buy a new dog to help cheer yourself up, or when you attend your only grandchild’s first birthday.  These times might be abnormally pleasant for you, but insurance companies paint these instances as your normal lifestyle.  Most surveillance conducted may not be a good representation of what your life is actually like.

The January 30, 2014 decision of Smith v. Hartford Life and Accident[4] is a fitting illustration of how insurers gather information through surveillance.  In her case, Ms. Smith was disabled due to carpel tunnel syndrome and arthritis in her hands.  She could no longer perform her duties as Assistant Vice President and General Manager of Chevron Federal Credit Union.  Most of her work required typing, grasping, and reaching, which she could not do for long periods of time, as her position required. 

After Hartford approved Ms. Smith’s initial long term disability benefit payments, the company sent a private investigator to conduct four days of video surveillance on her.  The investigator recorded Ms. Smith getting in a vehicle, driving, walking around, loading groceries, pushing a shopping cart, and walking a dog on a leash. Hartford used this surveillance to help deny her claim for long term disability benefits.  Notably, Ms. Smith had not claimed that her condition prevented her from doing any of those actions recorded by private investigators, nor were those actions relevant to her job duties. 

The District Court of California ultimately ordered the reinstatement of Ms. Smith’s benefits under the policy because Hartford doctors never conducted an in person interview with Ms. Smith.[5] Furthermore, the court criticized Hartford for allowing their doctors to review only a portion of her medical records, and for omitting other sources that substantially bolstered her position and diagnosis.[6] In other words, the court found that the surveillance alone was not enough to deny Ms. Smith’s claim.

So what surveillance methods can you expect an insurance company to use when they investigate you?  What limitations do those companies have, and what rights do you have? 

Phone Tapping

Let’s start with the first story above.  The former police officers and firefighters’ phones were tapped.   Can insurance companies tap your phones?  The answer is usually no.  In the officers and firefighters’ cases, they were investigated by federal authorities for abuse of Social Security benefits.  Unless the investigator both works for the government and has a warrant to tap your phone, doing so is a violation of state and federal laws.[7] 

If you find any evidence of phone tapping, you can report insurance investigators to the authorities. However, it may be difficult to know when your phone is being tapped, or if your phone calls are being intercepted.  A previous article we wrote, titled “Misuse of Surveillance in Investigation of Disability Insurance Claims,”[8] reviews the many surreptitious techniques that investigators use to listen to phone calls and track your cell phone.  Just because these forms of surveillance are illegal doesn’t mean that some unscrupulous insurance investigators won’t try to use them.

Photographing and Video Surveillance

If you were in Ms. Smith’s situation above, and someone sat outside your home and took videos of you walking your dog and going to the grocery store, have they violated your rights?

First, the means and methods mentioned in the Smith v. Hartford decision are lawful.  In California and Arizona, if you are in public or a location where the public is welcome, anyone can both photograph and videotape you without permission, as long as you have no reasonable expectation of privacy.[9] For example, taking the trash can out to the sidewalk, walking in your neighborhood, or going to any grocery or retail store are all situations where one has no reasonable expectation of privacy. 

However, both Arizona and California have determined many statutory locations where you do have a reasonable expectation of privacy, and are thus off limits to surveillance.  Some of these locations include, but are not limited to: restrooms, bathrooms, locker rooms, bedrooms, changing rooms, fitting rooms, dressing rooms, tanning booths, most interiors of a home, and other locations not visible to the public.[10] 

Let’s consider a couple of examples.  Surveillance conducted in a gym or workout area would be permitted (as long as the public is welcome to come into that area, and it’s not an area, like a locker room, where most people expect their privacy).  Moreover, if you have floor to ceiling windows in your living room, and you are in front of the open windows, even though it’s inside your house, you aren’t going to have an expectation of privacy in that location.  If anyone walking down the sidewalk can see you, so too can a private investigator, and they can videotape you for their records.  Most people can avoid this type of home exposure by both installing and properly using window shades and curtains.

Insurance companies will do their best to photograph or videotape your activities when you least expect it.  It doesn’t matter if you live in a gated community or only go to an exclusive club that requires a membership card to get in.  Many private investigators are former law enforcement officers or FBI agents.  They know how to get into places where you may be most vulnerable and will conduct surveillance when you aren’t paying attention.

Trespassing

What about trespassing?  If you see a suspicious vehicle parked across the street for long periods of time, are they trespassing?  In Arizona and California, trespassing refers to remaining on someone’s property once permission to be there has been denied.[11]  It can also refer to entering someone’s yard and looking into his home, thus violating the occupant’s right to privacy.[12]  If someone is parked across the street, that doesn’t mean he is breaking the law or trespassing.  Generally, when police investigate a “suspicious” or otherwise “unwanted person” watching residents from his or her car, they cannot do much (if they actually do investigate the situation at all).  Most private investigators are licensed and will provide documentation to an officer if questioned about their stationary behavior.  Police officers commonly leave them alone unless they are otherwise breaking the law. 

What if investigators stand in the street and film you blatantly (possibly in a purposefully unsettling manner), or decide to knock on the door and peek through the windows?  This is a common tactic insurance investigators use to intimidate or goad you into coming out of your home.  They may even bang on your door while yelling, “I know you’re in there!”  While such methods are not per se illegal, they demonstrate bad faith investigation practices, and possibly could expose your insurance company to civil liability.  The bottom line is, if investigators act in these ways while on your property, you do not have to open the door, and can always ask them to leave.  If they do not leave, they are trespassing.  Similarly, if someone snoops around your home or looks in through your windows, and you feel vulnerable or intimidated, the best thing to do is call the police.

Social Media

Similar to strategies used in the Wall Street Journal article above, insurance investigators will use Facebook, Twitter, Instagram or other social media to find evidence of your health status or location.  And it’s not just your accounts they search. Insurance companies often review and search your friends, relatives or community service organizations’ accounts to find recent pictures of you during outings, exercise, or service projects.

In a recent article titled “Insurers’ Law Firms Using New Technology to Track Your Social Media Activity,” we explained how insurance providers and their law firms will use social media against disability claimants.[13]  These companies monitor social media to determine when you go on vacation and may even follow you abroad.  Insurers do this, despite the cost, because they have documented disability claimants participating in many activities that appear to run contrary to their disability claims.  Being followed on vacation is even more likely if your disability insurance benefits are larger claims that must be paid over many coming years.

Likely Times of Surveillance

If your only plan to avoid surveillance is to vigilantly monitor suspicious characters parked outside your home, you may need to think again.  Private investigators don’t always sit in a car across the street for days on end.  They may not have to because some insurance companies require disability claimants to fill out forms detailing their daily or hourly routines.  The investigators then use these forms to plan surveillance for the exact time you pick up the kids, run errands, or visit your doctor.  This allows investigators to decrease the time they are following you or the likelihood of being spotted with a video camera pointed in your general direction. 

Insurance companies also commonly conduct their surveillance just prior to an independent medical examination.  Their goal is to provide video evidence to their hired doctor of any actions that seem contrary to statements in your exam or claim forms.

Other likely times that private investigators attempt to follow or get video of you is when you are most happy.  These times include holidays, birthdays and anniversaries, when many people get out of the house to visit others or attend social events. 

 What to Do If You Are Under Surveillance

The key to success in any disability claim is truthfulness and honesty regarding your limitations and abilities from the start of the claim process.  For example, if insurance forms ask you to state when you drive your car, and you offhandedly think that you “never” drive, be sure that is 100% accurate.  If you occasionally drive, say to the neighborhood pharmacy for a prescription, you may want to state that you “rarely” drive.  Accurate reporting of your condition ensures consistency in your statements and actions, and will give insurance companies fewer reasons to deny your legitimate claim. 

If you experience intimidation tactics from investigators and feel vulnerable, call the police.  If you are worried about your disability claim or think you are (or have been) under surveillance, the best thing to do is to contact an experienced disability insurance attorney who can help you take control of your situation and financial future.  A good attorney will help you determine if the surveillance may be used against you and take the necessary steps going forward.

 

 

[1] “Ex-NYPD Cops, Firefighters Charged With Disability Fraud,” Wall Street Journal, Jan. 8, 2014.

[2] Id.

[3] Id.

[4] Smith v. Hartford Life & Acc., C 11-03495 LB, 2013 WL 394185 (N.D. Cal. Jan. 30, 2013).

[5] Id.

[6] Id.

[7] In Arizona, phone tapping is a felony, which is punishable by fines and jail time. See Ariz. Rev. Stat. § 13-3005.  In California it is a crime punishable by up to a year in prison and a fine of $5,000 for each instance. See Cal. Penal Code § 637.  Under federal law phone tapping is punishable by prison time for up to 5 years, and a $500 fine for each instance. See 18 U.S.C.A. § 2511, 2520.

[8] http://www.disabilitycounsel.net/surveillance

[9] Ariz. Rev. Stat. § 13-3019; Cal. Penal Code § 647.

[10] Id.

[11] Ariz. Rev. Stat. § 13-1504; Cal. Penal Code § 602.

[12] Ariz. Rev. Stat. § 13-1504.

[13] See also the ABA Journal’s recent article “6 tools to help firms track social media,” Sept. 1, 2013.

As Seen In: