Prohibition of confession
Sep 12, 2023
From: Attorney Shikma Levi Ezra
A passerby claims he was injured because of the construction work you carried out? Don't rush to admit it. Attorney Shikma Levi Ezra from our legal department explains why admitting it could get you into trouble with the insurance company.
A man falls near a construction site and contacts the contractor demanding compensation in the amount of 6,000 shekels. The contractor, who is afraid of getting into trouble and perhaps just wants to move on, offers to "close" on 4,000 shekels. From this moment on, and no matter what the injured party's response, the contractor may in fact be found to
From now on, any future discussion regarding the accident will be conducted solely on the question of damages, as the first phase of the case, which deals with "liability," was decided on the spot.
In the following short article, we will touch on one of the common mistakes made by contractors and construction site bystanders, who rush to take responsibility and provide admissions, when in reality they sometimes have no responsibility for the event. What are the potential consequences of these admissions and why we recommend – based on 35 years of experience in construction insurance – to avoid making false admissions.
From: Attorney Shikma Levi Ezra
A passerby claims he was injured because of the construction work you carried out? Don't rush to admit it. Attorney Shikma Levi Ezra from our legal department explains why admitting it could get you into trouble with the insurance company.
A man falls near a construction site and contacts the contractor demanding compensation in the amount of 6,000 shekels. The contractor, who is afraid of getting into trouble and perhaps just wants to move on, offers to "close" on 4,000 shekels. From this moment on, and no matter what the injured party's response, the contractor may in fact be found to have admitted responsibility for the accident . A legal admission for all intents and purposes .
From now on, any future discussion regarding the accident will be conducted solely on the question of damages, as the first phase of the case, which deals with "liability," was decided on the spot.
In the following short article, we will touch on one of the common mistakes made by contractors and construction site bystanders, who rush to take responsibility and provide admissions, when in reality they sometimes have no responsibility for the event. What are the potential consequences of these admissions and why we recommend – based on 35 years of experience in construction insurance – to avoid making false admissions.
Prohibition of confession as a condition in insurance policies
As a rule, liability insurance or contractor work insurance includes a "no admission" clause. The purpose of the prohibition is to allow the insurance company, which is supposed to "step into the shoes of the insured," to manage the defense on his behalf and bear the consequences. This is after it has been able to analyze the incident, the circumstances of the claim, and defend itself in the best possible way.
An admission of guilt may sometimes result in the loss of insurance coverage . From the insurance company's perspective, in such a case, the discussion may only be about the amount of damage and not the question of liability. That is, the admission exposes the insurance company to compensation even if in practice it believes that the insured is not responsible, or that his liability for the damage is reduced. Therefore, the rule is that liability should not be admitted, but that the claim or demand should be handled in coordination with the insurance company.
As a rule, liability insurance or contractor work insurance includes a "no admission" clause. The purpose of the prohibition is to allow the insurance company, which is supposed to "step into the shoes of the insured," to manage the defense on his behalf and bear the consequences. This is after it has been able to analyze the incident, the circumstances of the claim, and defend itself in the best possible way.
An admission of guilt may sometimes result in the loss of insurance coverage . From the insurance company's perspective, in such a case, the discussion may only be about the amount of damage and not the question of liability. That is, the admission exposes the insurance company to compensation even if in practice it believes that the insured is not responsible, or that his liability for the damage is reduced. Therefore, the rule is that liability should not be admitted, but that the claim or demand should be handled in coordination with the insurance company.
A legal case ultimately relies on evidence, and tort cases are divided into two stages: in the first stage, the plaintiff must prove "liability" (that is, that the defendant "must" compensate him), and in the second stage - to the extent that liability has been proven - he must prove the extent of the damage (what compensation he is entitled to).
Proving "liability" is critical. In the absence of liability, the damage caused (if any) is meaningless. Within this setting of presenting evidence, a defendant's admission is "golden evidence."
We will explain with the example of the contractor who began to negotiate with the injured party. The very litigation is an admission for all intents and purposes . From this, three possible scenarios can actually emerge (only the first of which could be a kind of "lesser evil" from the contractor's perspective):
1. The victim is satisfied with the amount he received – The victim is satisfied with the amount he received and the story comes to an end.
2. The injured party refuses to accept the amount and files a lawsuit – in this case, the contractor will have great difficulty (to say the least) in claiming in legal proceedings that there is no liability at all. His offer of a settlement, made on the spot, will be used against him as an admission. To the extent that the court does not allow him to retract his admission, the hearing will revolve primarily around the compensation due to the plaintiff.
3. The injured party receives the money but files a claim anyway – in this case, as in the second scenario, the contractor will not be able to claim that the case was “closed” on the spot with the initial payment. The injured party may claim, for example, that the damage he suffered was greater than the amount he agreed upon, and in the absence of a settlement bill (which we will expand on immediately), he has the right to receive full compensation. The amount of money received can also resolve disputes regarding what was or was not said in the conversation on the ground.
All of the scenarios we have described are not optimal for the contractor. Even the first scenario, where the story is supposedly behind him, does not completely close the matter. The "reversing sword" of the lawsuit has not yet been removed by the end of the statute of limitations (7 years for bodily injury and 3 years for property damage).
Admittance by conduct – An admission can be not only verbal or written, but also by conduct. A “classic” example of this is when the contractor denies his responsibility but rushes to repair the hazard, causing injury to a passerby who is near his construction site. Even if the repair is done out of good faith to prevent future accidents, the contractor, by actually repairing the hazard, “admits” that he is responsible. The actual repair can be interpreted in court as an admission and used against the contractor in a lawsuit that is filed.
Please note! This is not a trivial matter. Compensation in personal injury cases can amount to huge sums even following accidents that seem minor at first glance. You never know who the injured person is, what their occupation is, what their medical history is, and what the impact of the accident may be on their lifestyle.
What is a confession?
These incidents are not just about personal injury. As an insurance agency that has been involved with countless projects and construction sites for over 35 years, we can tell of many cases where contractors or their representatives have "admitted" to property damage on the ground and found themselves in legal limbo. Sometimes even "admissions" made out of good will have turned into a double-edged sword.
So what do we do? The simple guideline is that no admission is allowed in any way. Not in words, not in writing, not in gestures or behavior, and certainly not in actions such as correction. You should seek legal advice as soon as possible, preferably one hour in advance. Have you decided to "close" the matter on the spot? Do not do this without receiving a settlement bill. A document in which the injured party declares and signs that he has accepted the amount offered to him, and that he undertakes not to file a claim/demand or raise a claim regarding this accident in the future.
Not just bodily harm
Prohibition of confession regarding events at the construction site itself
A confession is also legal evidence in the event of an injury at work. Let's take, for example, an extreme case of a serious injury at a construction site following a fall from a height. An event that can immediately lead to the arrival of rescue forces at the site as well as the appearance of enforcement officials from the Israel Police or the Ministry of Labor.
In these situations, it is clear that it is better to wait and not give any version. Certainly not to make statements on issues such as safety training on the site, safety measures given to the employee, etc. Most (legal) mistakes occur when defendants/accused speak before receiving legal advice at the moment of the incident and under great pressure. The desire to maintain the right to remain silent until consulting with a lawyer, unlike a real-time confession, will not be used as evidence in court.
This concept of avoiding admission before receiving advice is not only true for serious injuries or the death of a worker on site. It is also relevant to much smaller incidents. As noted above, even an accident that seems relatively minor at first may turn out to be serious later. Admitting liability weakens the "case" in claims that may be filed in the future for very large amounts.
An important point that is always emphasized - when an event occurs off-site or near it, it is of great importance for the event to be documented by one of the employees who is on site. The documentation is intended to reflect the event to the insurance company and the courts, if legal claims arise. This is so that the contractor/developer can claim on the day of the order: This is what actually happened, I have no responsibility for this.
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A confession is also legal evidence in the event of an injury at work. Let's take, for example, an extreme case of a serious injury at a construction site following a fall from a height. An event that can immediately lead to the arrival of rescue forces at the site as well as the appearance of enforcement officials from the Israel Police or the Ministry of Labor.
In these situations, it is clear that it is better to wait and not give any version. Certainly not to make statements on issues such as safety training on the site, safety measures given to the employee, etc. Most (legal) mistakes occur when defendants/accused speak before receiving legal advice at the moment of the incident and under great pressure. The desire to maintain the right to remain silent until consulting with a lawyer, unlike a real-time confession, will not be used as evidence in court.
This concept of avoiding admission before receiving advice is not only true for serious injuries or the death of a worker on site. It is also relevant to much smaller incidents. As noted above, even an accident that seems relatively minor at first may turn out to be serious later. Admitting liability weakens the "case" in claims that may be filed in the future for very large amounts.
An important point that is always emphasized - when an event occurs off-site or near it, it is of great importance for the event to be documented by one of the employees who is on site. The documentation is intended to reflect the event to the insurance company and the courts, if legal claims arise. This is so that the contractor/developer can claim on the day of the order: This is what actually happened, I have no responsibility for this.
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