ZALMA’S INSURANCE FRAUD LETTER

As I have previously mentioned, my insurance consulting/expert witness business is not just to help you with my own experience and research but to direct you to others that, in my opinion, can supply additional pertinent information.

I sincerely appreciate most of my fellow consulting/expert witness professional colleagues.  However, I do not normally “advertise” for them!  Here is an exception.

As an insurance attorney you may find even the multitude of free writings of Barry Zalma, Esq, CFE of Culver City, California to be most interesting and helpful.  Not only are current cases and issues discussed by Barry, but he is also the author of several books.  Being in touch with Barry from time to time, I consider him a friend.

For a starter, you may subscribe to the e-mail version of  “Zalma Insurance Fraud Letter” at http://www.zalma.com/ZILF-CURRENT.htm.

The “Zalma On Insurance” blog address is http://zalma.com/blog.

Oh and by the way… Billy Akin, CPCU, ARM still offers you a free consultation with an initial frank and honest opinion on your insurance cases!

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.

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AGENT DUTIES… ANOTHER CASE IN POINT

As many of you have learned, my involvement in insurance related cases is not based upon my contact representing the plaintiff or the defendant.  Nor is it based upon the party being an insured, an agent, a company representative, or any other position in the transaction.

The Newsletter/Blog before last told of a case where I was for the insurance agent.  In the spirit of “equal time” here is a case where I was for the insured.

This case, involving uninsured motorist coverage, was brought about by the actions (or lack thereof) of an agent we shall call Ms. Non-Technical.  The insured was insurance illiterate and had heavily relied upon her agent of many years to see that her assets were protected.  Previously the insured had been involved in an accident and was aware of how a seemingly small incident can result in a huge financial loss.  She had specifically asked Ms. Non-Technical to see that her insurance coverage was there to protect her assets, and be sure that the limits were “high”.

As a result, Ms. Non-Technical arranged for an umbrella (excess liability) policy “to properly protect her assets”.   Although uninsured motorist coverage was discussed and this coverage was on the primary insurance policy, the agent failed to place this coverage on the new personal umbrella policy.

A few months later the daughter of the insured was killed by a negligent uninsured motorist.   Enter the lawsuit, against the agent!  After examining the details of the relationship between the agent and insured, based on my research and experience, I opined that a proper “Standard of Care” was not met by Ms. Non-Technical.

I strive for my opinions to be unbiased and not based on the contact source.  Naturally, at times I have to tell the contacting attorney, “sorry, hope you will contact me again.”

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.

IN AN EXPERT, PASSION EQUALS CREDIBILITY

Think you will agree with the following thoughts, excerpted from an article by Robert Ambrogi with IMS Expert Services, tagged “Tips From The Trenches”:

Credibility is a key attitude in an expert witness.  But how do you gauge a potential expert’s credibility?  What attributes provide the best predictors of how an expert will measure up in the eyes of a jury?

For Chicago attorney Andrew R. McGaan, a lawyer who has tried and won jury and non-jury cases throughout the United States, experience has taught him to look for something other than what he was taught as a young lawyer.

Conventional wisdom teaches lawyers to look for well-credentialed experts with degrees from prestigious schools, honors in their field and experience testifying.  That wisdom carries kernels of truth, McGaan says, but credentials is not at the top of his list.

“Credibility comes first and foremost from having an expert with direct experience in exactly the same problem as you are dealing with in the courtroom”, he explains.

But hands-on experience is only half of the equation.  The other trait McGaan looks for in an expert is passion about his or her work.  “If they have an innate passion for what they do, that comes through in their ability to explain the field to everyday people on the jury who have no background in it and probably don’t care about it”

McGaan draws an analogy to hiring a plumber for your home.  “When a plumber comes to your home for the first time, you can quickly tell if he’s done this work before and if he has a passion for getting it right.”

Jurors look for similar qualities in a trial witness.  “The jurors know that the spotlight is on them,” McGaan explains.  “They look at every witness with the same question, ‘Are you someone who is going to help me sort through this problem or not?’”

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.

AGENT DUTIES… A CASE IN POINT

From time to time I continue to get inquiries as to the type of insurance cases with which I get involved.   As explained many times, I consider the circumstances of each individual case and give an unbiased opinion as to my evaluation of the matter… sometimes to the pleasure of the contacting attorney… and sometimes not.

Having now been involved in over one hundred fifty (150) cases here is an example of a case in which I acted as expert witness.  In this summary, and it is greatly summarized,  all names have been changed to protect the innocent… and the guilty!

Let’s call the case “Mr. Professional”.  There was a “self-proclaimed” insured, who felt he had coverage as soon as his agent, Mr. Professional, sent his application to an E&S insurance carrier. This account historically had been in the Excess and Surplus Lines market, as a hard to place risk.  Significantly, the agent gave no indication that coverage was bound, explaining that the application had to be sent to see if a carrier would accept.

The applicant, who had a past of questionable legal activities and at least one fire of suspicious origin, assumed coverage was automatically in place.  Prior coverage had been properly (in my opinion) non-renewed by the company that previously wrote the insurance.  The agent had volunteered to look elsewhere for possible coverage.

Within a few hours after the would-be insured had the discussion with the agent, he unknowingly left North America with no way to be contacted.  His estranged wife was seemingly unconcerned about insurance matters.  You can probably guess “the rest of the story”.  A few days after the original homeowner’s policy expired, and with the agent frantically attempting to get in touch with someone about the rejection of the application, a large loss occurred.

In my opinion, considering all the evidence in this case, the agent acted within an acceptable standard of care.

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.

AN EXPERT WITNESS ON EXPERTS, Part 2

This is the second of a two part series where,  as an expert witness over the last two decades, I am sharing my thoughts as to how the attorney-expert relationship can be the most effective.  Part one is now on my blogsite: www.pcandsblog.wordpress.com. 
 
You should be convinced that the potential expert understands his or her neutral approach to the case. Several years ago, a presentation that I gave to an insurance claims association was entitled:  “Don’t Mention That H…. G.. Expression.”  In your initial contact with a potential expert, always try to get a sense of whether or not the individual wants to study and take an unbiased look at the matter or just wants a job!  In addition to the obvious ethical consideration, an expert expressing an opinion just for the pay will likely be “exposed” before the trial is over.  Having said that, let me admit that, as you know, not many cases are “black and white” in fact or opinion.  The expert must realize that he or she is not in the advocacy position of an attorney.
Even though most of us enjoy our work, monetary remuneration is a necessary fact of life.  At the initial contact with a potential expert be sure an agreement is reached as to pay scale, nature of a retainer, and expense reimbursement.  All parties should see that a written agreement is in place before beginning examination of documents.  Do not expect an expert to give you a substantial amount of his or her time in study of documents and even give an initial opinion before “the meter is running”.
If you are not confident that a potential expert will be completely honest in reporting time spent on a project, don’t hire him or her!  As the project progresses, see that statements are promptly paid.  Believe me, to have to press for payment for services can put a damper on one’s enthusiasm as an expert.
There seems to often be a question of how much material should be sent an expert before he/she renders an opinion.  Information overload can be a problem, however an attorney should not… must not… withhold any information that might cause the expert to be improperly swayed toward the contacting attorney’s opinion.  Better to err on the side of sending too much material than too little.  The good expert will not have to initially read word for word every document sent in order to form  initial opinions.
It is recommended that an expert first be engaged as a consultant and let the relationship evolve into the declaration as an expert witness.  
Be sure the expert is aware of what is discoverable, and understands how to handle attorney contacts, retain or discard files, and related matters. Make every effort to develop a relationship with the expert that facilitates a comfortable exchange of thoughts and ideas.
Over the last couple of decades during which I have had the privilege of working with many brilliant and well qualified attorneys, it is apparent that most any lawyer can be helped by the  experience, professional training and “contacts” of an individual within any specialized and highly technical industry, such as insurance

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.

AN EXPERT WITNESS ON EXPERTS, Part 1

It was in the quaint court room of a small North Carolina county seat some 30 years ago that an attorney pointed to me and strongly declared to the judge, “my expert tells me…”.  As an officer an insurance company that was involved in a complicated lawsuit, I had been sent to help unravel some of the insurance terminology, procedures, etc.  My somewhat modest personality was startled when, for the first time, I was referred to as an “expert”!

Based on my intervening experience, may I suggest some things you need to look for in an expert witness, and ways to improve your relationship with this type consultant.

When you need an expert in a specific field, don’t hesitate to inquire of colleagues, or even attorneys from another firm.  Check with persons in that particular field and with their trade associations.  Many would-be experts have other jobs or responsibilities and don’t put much emphasis on advertising.  Request information and check with attorneys with whom the expert has worked.  The use of the several expert witness contact firms is fine, but naturally adds substantial cost to the process.  Words of appreciation from so many attorneys have convinced me that experts (or simply consultants) can be of great help to you.  Don’t give up the search process easily.

On the issue of qualifications, you should pay attention to professional designations and interaction with industry personnel.  Involvement in seminars and articles published can be an indication of communication skills.  Even a well qualified, experienced person in a particular field cannot be expected to have “all of the answers” on the tip of their tongue.  Beware of a potential expert who seems to “know all there is to know” about any field of business.

You should consider the scope of the expert’s experience in their particular field.  Some people never move outside one section of an industry during their entire career. For example, a very good insurance agent may have little knowledge of the internal operation of an insurance company, or the expectations of its personnel.  There is a vast difference in having 25 years experience in a field and having one year’s experience 25 times.

The initial thought process of an expert grasping the problem can be significant.  Even though all the answers may not immediately come from an expert (and beware if they do), the potential expert should have a good grasp of the questions, i.e. area’s where opinions are needed.

TO BE CONTINUED…

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.

WHAT ATTORNEYS NEED TO KNOW ABOUT INSURANCE, Part 4

This is the title of an article of mine published in the Tennessee Bar Journal and a subsequent Bar Association webcast.  With the permission of the TBA, I would like to share with you in the next few newsletters.  This completes the list of ten (10) items.

Having invested over a half century of my professional career in the Property and Casualty insurance business, the last decade being involved as a consultant and expert witness, I feel an urgency to mention a few areas that can be of help to attorneys.

  1. Are all application questions of equal significance to underwriters? From decades as an underwriter and later underwriting vice-president of an insurance company writing business in most jurisdictions of the United States, it seems to me that not all questions on an insurance application are of equal significance. Sure, the prospective insurance carrier prepares the application, and must feel that the questions have some underwriting significance. However, whether or not their company should, or will, accept coverage is determined by their underwriters who invariably put different weight of decision on various items. This gets into the legal question of “materiality.” For example, whether or not a prospective insured had a small electrical fire six years ago does not carry the same weight in the decision making process as whether or not the prospective insured is a convicted arsonist and asking for an amount of insurance twice the property’s value!
  2. What are some special insurance terms that should be understood? Many insurance related terms are peculiar to the Industry…..some attorneys contending that the terms are peculiar to the English language! None-the-less, these unique phrases must be understood as insurance cases are analyzed and processed. In addition to those items discussed in this article, there are several other terms that attorneys need to understand. These include such terms as “occurrence” vs. “claims-made” forms; “double recovery”; “loss of income”; “all risk” vs. “named peril”; “reporting forms”; “audit provisions”; “equity clauses”; “depreciation” vs. “replacement cost”; etc. Access to a hard copy and/or web site dictionary of insurance terms is a must for attorneys and their staff when handling insurance cases. These sources may be enhanced by the use of persons with “hands on” insurance experience.
  3. What is a “reservation of rights”? Under a Duty-to-Defend policy, insurers are sometimes asked to provide a defense for lawsuits that include both non-covered and covered claims. Insurers usually provide a defense to their insured for the entire lawsuit, pursuant to a “Reservation of Rights” letter. This letter normally seeks reimbursement for defense cost that an insurer pays for claims encompassed within a lawsuit that are determined not to be covered under the policy. The specific provision(s) giving an insurer the privilege of issuing a “Reservation of Rights” letter might vary from policy to policy. Without a “Reservations of Rights” statement, an insurer would normally assume payment of their legal costs and claim payment.

With what might be termed a “disclaimer,” let me mention that these remarks are made with the realization that there are many exceptions to general rules and principles in the Insurance Industry. These thoughts are expressed in generalities, based on my past training and experience, and deal more with “Standard of Care” as well as “Custom and Practice” issues rather statutes and legal precedent.

How may we help you?

Note: Information in these blogs is not intended to replace any legal or financial professional information.