10. Settling the Claim - Litigation

Question 1

Litigation

Answer 1

• laws and courts favor settlement by negotiation, avoiding litigation
• offers made during negotiations are not admissible in court

Question 2

Liability Claims vs. Property Claims

Answer 2

Liability: claimant is a third party

Property: claimant is the policyholder

Question 3

Litigation or Not

Answer 3

Litigation is a last resort for the insurer:

• unpredictable
• potential prejudices against insurers

Should the claim go to court?

1. How much money must be surrendered?
2. How will this affect our reputation?

Question 4

The Adjuster’s Claim File: Discoverability

Answer 4

In court, the adjuster’s claim file is discoverable - it must be handed over.

Discoverable vs. Privileged

1. Attorney-Client Privilege: confidential information between the attorney and his client shared as part of the process of getting legal advice.
2. Work Product: work prepared for the insurer in anticipation of imminent litigation, as long as the insurer would not have had the work done if it weren’t for the lawsuit.

Question 5

The Adjuster’s Claim File: Filing Tips

Answer 5

claim file should be:

• clear
• organized

claim file should have:

• detailed documentation of claimant’s testimony
• witness statements
• investigations

claim file should NOT have:

• negative opinions about the claimant or insured
• racist or biased comments ( no fucking shit? who writes this bullshit jfc )

Question 6

The Adjuster’s Claim File: Proper Language

Answer 6

Unsafe

“I believe the claimant is a lying fraud, which is common among people in her income bracket” lmao savage af

Safe

“My investigation revealed several apparent inconsistencies between the physical evidence and the claimant’s statements. They are as follows:…”

Question 7

The Adjuster’s Claim File: Safety Tips

Answer 7

1. Never joke in written communication - paper or electronic
2. Be careful with photographs ( no irrelevant or embarrassing photos )
3. Document everything, including the date of all communications as they transpire

Ex. of communications in claims file:

• “8/23/12 - Called claimant and left a message.”
• “8/26/12 - Sent interim report to claims manager Joe Smith.”
• “8/27/12 - Inspected loss with insured and insured’s contractor. Took recorded statement.”

Question 8

Criminal vs. Civil Trial

Answer 8

Criminal Trial:
- State (plaintiff) vs. Citizen (defendant)

Civil Trial:
- Citizen (plaintiff) vs. Citizen (defendant)

Ex. thru TV depictions

• Criminal trial: Law and Order
• Civil trial: Judge Judy

Question 9

Claims in Civil Trials

Answer 9

Claim disputes are settled in civil trials:

• defendant is typically the insurer
• plaintiff is the claimant
• adjuster is typically a witness

If an adjuster does end up in criminal court it is usually as:
* witness for either party
OR
* defendant (if accused of a crime)

Question 10

Burden of Proof

Answer 10

Criminal trial burden of proof:

• 12 out of 12 jurors
• guilt proved “beyond a reasonable doubt”

Civil trial burden of proof:
* wrongdoing proved by a “preponderance of the evidence”

Preponderance of evidence:
* more evidence supports the plaintiff’s case than contradicts it (51% or more evidence supports)

Question 11

Contributory vs. Comparative Negligence

Answer 11

Jury’s Responsibilities:

• determine the level of liability of both parties
• determine the amount of damages

Contributory Negligence:
- Any negligence on the part of the plaintiff = no settlement

Comparative Negligence:
- Settlement reduced by the percentage of the plaintiff’s negligence