10. Settling the Claim - Litigation Flashcards
Litigation
- laws and courts favor settlement by negotiation, avoiding litigation
- offers made during negotiations are not admissible in court
Liability Claims vs. Property Claims
Liability: claimant is a third party
Property: claimant is the policyholder
Litigation or Not
Litigation is a last resort for the insurer:
- unpredictable
- potential prejudices against insurers
Should the claim go to court?
- How much money must be surrendered?
- How will this affect our reputation?
The Adjuster’s Claim File: Discoverability
In court, the adjuster’s claim file is discoverable - it must be handed over.
Discoverable vs. Privileged
- Attorney-Client Privilege: confidential information between the attorney and his client shared as part of the process of getting legal advice.
- 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.
The Adjuster’s Claim File: Filing Tips
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 )
The Adjuster’s Claim File: Proper Language
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:…”
The Adjuster’s Claim File: Safety Tips
- Never joke in written communication - paper or electronic
- Be careful with photographs ( no irrelevant or embarrassing photos )
- 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.”
Criminal vs. Civil Trial
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
Claims in Civil Trials
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)
Burden of Proof
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)
Contributory vs. Comparative Negligence
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