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Table of Contents 1. Introduction to the Claims Game 2. The Fundamentals 3. Creating the Claims File 4. Investigating Coverage 4A. Researching Opposing Insurance Defense Counsel 5. The Factual Investigation 5A. How to Check the Financial Health of Defendant’s Insurer 6. Using Insurance Consultants and Experts 7. Settlement Negotiations and Compromises 7A. How to Succeed at Settlement Conferences 7B. Common Negotiating Mistakes 8. Techniques Not Found in Claims Manuals 8A. Claim Complaints: The Art of Being a Squeaky Wheel 9. Claims Denials 9A. Claim Evaluation Software 10. Action Letter Outlines 11. Releases and Covenants 12. How to Estimate Bodily Injury Settlements 13. Underinsured Motorist Coverage 14. How to Take a Claims Representative’s Deposition 15. Bad Faith—Bad News 15A. Extraordinary Bad Faith Cases 15B. Common Claim Myths 16. Settling the $5,000 to $75,000 Bodily Injury Claim 17. Uninsured Motorist Claims 18. The Claims Department and the Claims Manual
EXPANDED TABLE OF CONTENTS Chapter 1. Introduction to the Claims Game §100 In General—David and Goliath Relationship §101 Where Is the Money to Pay Claims Kept? §102 Why Does It Take so Long to Receive Payment? §110 The Games Played in Wrongfully Denying Claims §111 The Objective: Settlement and Payment §112 The Means to an End—Salesmanship §113 The Salespeople §114 The Product—Pain and Suffering (Damages) §115 Packaging a Settlement Demand to an Insurer §116 Reciprocal Presentations §117 Trading Settlement Demands and Offers §118 Selling the Settlement Demand §119 No Settlement Means Substantial Future Costs Leading Up To Trial §120 Avoiding Bad Faith §120.1 How to Avoid Bad Faith Conduct §130 The Players §131 The Plaintiff—A Fortuitous Person §132 The Insured—Who Is Protected Under the Policy? §133 The Agent or Broker—Middleman §134 The Insurer—Protector §135 The Adjuster—Bull or Bear §135.1 Adjusting the Adjuster—Why Many Adusters Have Lost Contact With Their Claims §136 The Attorney—Adversary or Assistant §137 The Insurance Commissioner—Regulator §138 The Courts—Can Give Authority to Issue Broad Discovery Orders on Other and Similar Claims Files §139 Agent/Broker Liability §139.1 Liability of Agent or Broker to Insurer §139.2 Liability of Agent or Broker to Insured §139.3 Liability of Agent or Broker to Third Parties §139.4 Damages §140 The Rules of the Game §141 Showing of Good Faith §150 Duties Owed by the Parties §160 Common Insurance Industry Acronyms §170 Locating Old Policies—Insurance Archeology §170.1 What Standards Do Claim Handlers Apply to Verify Coverage if a Claim Is Presented? §171 Insurance Premium Payment Records §172 Certificates of Insurance §173 Prior Company’s Sales/Mergers §174 Annual Reports, Financial Statements and Staff Reports §175 State Insurance Departments and Former Law Firms §176 Insurance Company Computers §177 Broker Correspondence and Accounts Payable Files §180 Rescission—The Ultimate Defense to Claims §181 Misrepresentation or Fraud in Marine Coverage §182 Misrepresentation or Fraud in Life or Disability Coverage §190 Insurance Fraud §191 Claim Withdrawal—Is It a Legitimate Practice? Or Is It Blackmail? Key Points to Remember Chapter 2. The Fundamentals §200 In General §201 Why the Application Is Important Sample: Automobile Application for Insurance Sample: Homeowners Application for Insurance §202 The Application as an Escape Device §203 The Application as a Negotiating Tool §204 Rescission §205 Post-Claims Underwriting §206 Slow Processing Resulting in Coverage—Friend or Foe, You Get No Dough! §210 The Automobile Accident §211 The Policy Comes Alive §211.1 Claims by the Insured §211.2 Claims by the Claimant §211.3 Notice Is Notice §212 Is Notice of a Claim or Occurrence to the Agent the Same as Notice to the Insurance Company? §212.1 Conflict of Interest—Agent Acting as the Adjuster §212.2 Coverage Adjustment §212.3 Factual Investigation §212.4 Two Estimate Adjusting §212.5 Minor Claims Only §213 Prompt Reporting by the Agent §213.1 Notifying the Claims Department Sample: Accord Form §213.2 Service Is the Product §214 Initial Claim Avoidance by the Agent—Does the Agent Have a Conflict of Interest? §214.1 Referral to the “Other Carrier” §214.2 Talking the Insured Out of a Claim §214.3 Bad Faith by the Agent of the Insurer §220 Agent’s Initial Report to Claims Department §221 All Lines of Coverage Confirmed §222 Policy Number Verified §223 Limitations §230 Facts of the Accident §230.1 Date and Time of Loss §230.2 Location of Loss §230.3 Driver’s Name §230.4 Permissive Driver §230.5 Vehicle Description §230.6 The “Black Box” §230.7 Alternative Vehicle §230.8 Exclusions—Intentional Acts §230.9 Insured’s Attitude §230.10 Hardships §231 Agent’s Request for Status—Identification §232 Agent’s Bonus Plan Jeopardized §240 Answers to Frequently Asked Questions About Claims Adjusters and Insurance Companies §250 Forms of Insurance Companies §260 Parts of the Whole Insurance Company §270 Anatomy of the Insurance Contract §280 Insurance Company Attitudes Toward Payment of Claims and Why Some Companies Pay More Than Others Key Points to Remember Chapter 3. Creating the Claims File §300 In General §301 How the Claims File Is Created §302 Real and “Dummy” Files Created §302.1 Claim Filed With an Administrative Date of Loss §303 Coverage Documentation §304 Duties of Primary Insurers Owed to Excess Insurers §310 Fact Finding Team Assignments §320 Local and Companywide Claim Numbers §321 Multiple Claims Offices §330 Late Reporting Problems—Liability Claims §331 By the lnsured §332 By the Agent §333 By the Broker §340 Checklist for Coverage Investigations—Automobile, Environmental, Construction, and Job Site Injury Claims §350 Checklist for Factual Investigations §360 “First Call” Settlements §361 Diary Dates §362 Non-Waiver Guidelines—When Are They Valid? §363 Reservation of Rights Guidelines—What Is a Proper Reservation? Sample: Reservation of Rights Letter §364 Advice of Counsel Defense Through Use of Independent Attorney Letter §365 Carbon Copy Notice—May Be Evidence of a “Home Office” Claim File §366 Claim Reserves and Dates of Loss and Why They Are Important §366.1 Individual Reserves Are Made for Each Line of Coverage §366.2 Reserves for Legal Costs §370 Attorneys Involvement in the Claim Process: Is the Attorney Playing Adjuster? §380 Proofs of Loss (POL) and Examinations Under Oath (EUO) §380.1 Insurance Company’s Policy Sample: Proof of Loss (Homeowner) Sample: Proof of Loss (Automobile) §380.2 Waivers §380.2.1 Money Limits §380.2.2 No Fraud Suspected §390 Verifying the Timely Handling of the Claims File §391 Date/Name Stamping §392 Contact Rules With the Claimant and Insured §393 Agent Contact and Status Reports Key Points to Remember Chapter 4. Investigating Coverage §400 What Is Insurance Coverage? What Is the Difference Between Potential and Actual Coverage? And Can the Insurer Waive a Coverage Defense? §401 The Policy §402 Coverage Analysis §403 Policy Interpretation §404 Reasonable Intent of Insured §405 Reduction in Coverage §406 Marketing Brochures and Advertising §407 Duty to Defend §408 Trigger of Coverage §409 Reserved §410 Fiduciary Disclosure by the Insurer §411 Good Faith and Fair Dealing §412 Independent or Cumis Attorney Disclosure §420 Documents Necessary for a Coverage Investigation §420.1 Insured’s File §420.2 Application for Insurance §420.3 Agent’s Files §420.4 Underwriter’s Files §420.5 Coverage Question Investigation File §420.6 Factual Investigation File §420.7 Promotional\Advertising Materials §420.8 Insurance Commissioner’s File §420.9 Declaration Sheet §420.10 Insurance Endorsements §420.11 Underwriting Manuals §420.12 Outside Legal Opinion §420.13 Drafting History of Policy Forms §430 Obtaining the Necessary Statements §440 Policy Defenses §440.1 Reserved §440.2 No Insurable Interest §440.3 Occurrence Not Within Term Policy Period §440.4 Undefined Policy Terms §440.4.1 Vague or Ambiguous Policy Terms §440.5 Failed Policy Conditions §440.5.1 The Bankruptcy Clause §440.5.2 Duty to Cooperate §440.5.3 The No Action Clause §440.5.4 The Other Insurance Clause §440.5.5 Notice of Occurrence and Lawsuit §440.5.6 The No Assignment Clause §440.5.7 The Voluntary Payments Clause §440.5.8 The Subrogation Clause §440.6 Policy Exclusions §440.6.1 Burden of Proof on Exclusions §440.6.2 Expected and Intended Injury §440.6.3 Contractual Liability §440.6.4 Pollution Exclusion §440.6.5 Automobile Exclusion §440.6.6 War Exclusion §440.6.7 Damage to Owned Property §440.6.8 Damage to “Your Product” §440.6.9 Damage to “Your Work” or “Faulty Workmanship” §440.6.10 Unenforceable Exclusionary Clauses §440.6.11 Business Pursuits Exclusion §440.6.12 Policy Exclusion Riders §440.7 Claims for Emotional Distress §440.8 Policy Limits, Aggregate Limits, and Exhaustion §440.8.1 History of Policy Limit Insurance Forms §440.8.2 Exhaustion: When Insurer Can Withdraw From Defense §440.8.3 Claim Payment Allocation and Policy Exhaustion Issues §440.9 Prorating Coverage §440.10 Vehicle Ownership, Maintenance, Use, of Operation §440.11 Pre-Existing Condition §440.12 Prejudice §450 Contract Defenses §450.1 Fraud/Recission: Voiding the Policy §450.2 Mistake and Reformation §450.3 Policy Cancelled §450.4 Renewal or Cancellation of Coverage §450.5 Covered Malicious Torts §450.6 Partial Defenses Liquor Liability Exclusion §460 Third-Party Liability Policies: Specialized Issues §461 Duty to Defend §462 Obligation to Provide Defense for Claims §463 Duty to Defend and Independent or Cumis Counsel §464 Duty to Indemnify §465 Deductibles and Self-Insured Retentions §466 Stop Losses and Aggregate Deductibles §467 Beware of Allocation Games on Deductibles and SIR’s §470 Good Faith Coverage Investigation §471 Alternative Coverage Investigation §472 Numerous Theories of Denial—Waiver §480 Alternative Dispute Resolution §481 Four Basic Methods §482 Declaratory Relief Action §490 First Party Property Claims §491 Scope of Coverage: All Risk or Specified Peril? §491.1 Investigation of a Property Claim §491.2 Proof of Loss Requirements §491.3 Submitting and Completing Proof of Loss Form §491.4 Defects in Proof of Loss §491.5 Examinations Under Oath §491.6 Actual Cash Value §492 Collapse and Imminent Collapse §493 Concurrent Causation §494 Computer Viruses and Software Coverage §495 Mold Claims §495.1 What Is Mold and Why Has It Become an Insurance Issue? §495.2 First-Party Mold Claims §495.3 Are Third Party Claims Covered? §495.4 Additional Research §4100 Title Insurance Claims and Coverage §4101 Standard Form Title Insurance Policies §4102 Applicable Insurance Code Statutes and Regulations for Title Insurance §4103 Basic Title Insurance Terms and Definitions §4104 What a Title Insurance Policy Covers and Does Not Cover §4105 What Is the Title Insurer’s Obligation if a Defect Is Found? §4106 Benefits Payable Under a Title Insurance Policy §4110 Investigating Reinsurance Coverage §4111 What Is Reinsurance? §4111.1 Primary Purpose: To Spread Loss §4111.2 Secondary Purpose: To Allow Insurer to Write More Business §4112 Non-Admitted Insurers §4113 A Very Brief History of Reinsurance §4114 Lack of Case Law on Many Reinsurance Issues §4115 Understanding Reinsurance and Reinsurance Terminology §4116 How Reinsurance Contracts Work §4117 Notice and the Following the Fortunes Rule §4117.1 More on Following the Fortunes §4118 Is Bad Faith or Punitive Damages Claims Covered by Reinsurance? §4119 How Reinsurance Can Affect an Insurance Claim §4119.1 Insolvency of Ceding Insurer §4120 Coverage Under Personal and Commercial Umbrella Policies §4121 When Does an Excess or Umbrella Insurer Have an Obligation to Pay Under Its Policy? §4122 Horizontal vs. Vertical Exhaustion §4123 Insolvency of Primary Insurer §4124 If Primary Insurer Refuses to Defend Its Policyholder Leaving Excess Insurer Alone §4125 If Primary Insurer Is Defending But Refuses to Contribute Towards Settlement Within Its Own Limits Key Points to Remember
Chapter 4A. Researching Opposing
Insurance §400A In General §410A Search Martindale-Hubbell §420A Review Firm Web Page §430A Search Internet §440A Ask Other Attorneys |
