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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: Is It Always at the Insurance
Company?
§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 Adjusters 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?
§170.2
Company Loss Runs
§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
§366.3
Claim File Reserves on “Wasting” Policies
§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
§4130
Coverage Under Claims Made Policies
§4131
What Is a Claims Made Policy?
§4132
Reporting Period
§4133
Retroactive Date
§4134
Claim and Potential Claim
§4135
How Does a Claims Made Policy Differ From an Occurrence Based Policy?
§4136
Issues for Specific Types of Claims Made Policies
§4136.1
Directors and Officers Coverage
§4136.2
Limitations on D&O Coverage- Application Terms and Exclusions
§4136.3
Employment Practices Liability Coverage (“EPLI”)
§4136.4
Environmental Impairment Liability Coverage
§4136.5
Professional Liability Policies
Key Points to Remember
Chapter 4A. Researching Opposing Insurance Defense Counsel
§400A
In General
§410A
Search Martindale-Hubbell
§420A
Review Firm Web Page
§430A
Search Internet
§440A
Ask Other Attorneys
§450A
Watch Out for “Coordinating Counsel”
§460A
Research the Attorney’s Written Papers, Articles, Periodicals, and
Filed Pleadings
§470A
Search State Bar Websites
Chapter 5. The Factual Investigation
§500
Role of the Claims Adjuster/Representative
§501
Contact and Control
§501.1
Introduction of a Plaintiff’s Attorney
§502
The Preliminary Investigation—Scope of Investigation
§502.1
Favorable Facts
§502.2
Unfavorable Facts
§503
Duty to Disclose Coverages and Reservations of Rights
§503.1
Duty to the Claimant
§503.2
Duty to the Policyholder
§503.3
Agent’s Duty to Insurer
§510
Incident Statements (Signed, Unsigned or Recorded)
Sample: Automobile Loss Notice
Sample: Homeowners Loss Notice
§510.1
Checklist for Injury Evaluation
§510.2
Should Plaintiff’s Counsel Let the Adjuster Take the Plaintiff’s
Statement?
§511
No Personal Contact—Just Forms
§512
Insured Driver
§513
Witness in Insured Vehicle
§514
Witness in Adverse Vehicle
§515
Known Independent Witnesses
§515.1
Police Officers’ Statements or Interviews
§515.2
Tow Truck Drivers
§515.3
Ambulance Driver
§515.4
Unknown Scene—Canvassed Witness
§520
Insurance Claim Forms Documentation
§520.1
Medical Authorization
Sample: Medical Authorization
§520.2
Dental Authorization
§520.2.1
Special Notice
§520.3
Employment Records Authorization
§520.4
School Records
§520.5
Advance Payments—Med Pay
§520.6
Releases (Partial or Final)
§520.7
Indexes
§520.7.1
Bodily Injury
Sample: Claimant’s Index Report
§520.7.2
Vehicle
§520.7.3 Large
Fire Losses—PILR
§521
Documentation of Bodily Injury Claims
§521.1
Medical Bills
§521.2
Medical Reports
Sample: Medical Report
§521.3
Lost Wage Reports
Sample: Request for Employee Information
§521.4
Police Reports
§521.5
Death Certificate
§521.6
Coroner’s Report
§521.7
Criminal and Civil Court Records
§522
Photographs
§522.1
Insured Vehicle (by Adjuster)
§522.2
Claimant’s Vehicle (by Adjuster)
§522.3
Police Department—Vehicles
§522.4
Police Department Scene
§522.5
Police Department—Injured Parties
§522.6
Private Photos
§530
Classification of Parties
§531
First Party
§532
Third Party
§533
Both First and Third Party
§534
Experts and Expert Witnesses—Accident Reconstruction Experts
§534.1
Seat Belt Experts
§534.2
Auto Accident Reconstruction Experts
§534.3
Medical Defense Doctors—Can They Commit Bad Faith?
§534.4
Independent Medical Examiner (“IME”)
§535
Independent Adjusters/Investigators
§536
Examination Under Oath Statements
§540
A Settlement Demand in Excess of Policy Limits
§541
Bodily Injury Claims
§541.1
Value of Each Claim
§541.2
Prorating/Compromise
§541.3
Interpleader Action in Federal Court
§542
Property Damage Claims
§542.1
Value of Each Claim
§542.2
Prorating/Compromise
§550
When Multiple Insurance Policies Cover the Same Loss
§550.1
Insured Driver’s Policy (Third Party Coverage)
§550.2
Insured Driver’s Policy (Non-Owned Auto)
§550.3
Insured Driver’s Policy (First Party—Under/Uninsured)
§550.4
Insured Driver’s Policy (Primary, Secondary and Under/Uninsured
Coverage)
§550.5
Insured Driver’s Policy (Rental Car)
§550.6
When Excess Insurers Must Pay if There Are Multiple Retained Limits
§551
Anti-Stacking Rule and Non-Cumulation Clauses
§552
Homeowner’s Policy
§553
Drop Down Insurance
§560
Assessing Comparative Fault
§561
Phantom Vehicles
§562
Landowners
§570
Maintenance of the Claim File
§571
30/90 Day Diary
§571.1
Reverses as a Bad Faith Tip-Off
§580
Liens and Assignments—“Notice Claimants’’
§581
Medical Liens
§582
Worker’s Compensation
§583
Prior Attorney Representation
§584
Banks/Mortgage Companies
§585
Auto Body Repair Shops
Sample: Auto Body Shop Assignment of
Benefits
§590
Unfair Claims Settlement Practices
§591
Misrepresentation/Communication
§592
Reasonable Standards/Prompt Settlement
§593
Repetitive Documentation/Extortion
§594
Forced Litigation/Sham Arbitration
§595
Altered Application
§596
Disclosing Paid Benefits
§597
Directly Advising Against Representation
§598
Statute of Limitations—Insurers Must Generally Provide Notice of
Expiration to Policyholders
§599
Improper Investigation
Key Points to Remember
Chapter 5A. How to Check the Financial Health of Defendant’s Insurer
§500A
In General
§510A
Insurer Rating Sources
§520A
Rating Resources
§530A
IRIS Tests
§540A
A Primer on Insurer Insolvency
§550A
What to Do When Warning Signals Flash
§560A
How to Secure Funds Before the Insurer Goes Into Receivership—Make
the Insurer
Post a Bond
Key Points to Remember
Chapter 6. Using Insurance Consultants and Experts
§600
Is an Insurance Consultant or Expert Necessary?
§610
Timing: Usually the Sooner an Expert Is Retained, the Better
§620
How to Locate an Insurance Expert
§621
Word of Mouth
§622
A National Directory of Experts
§623
Reported Cases at the Trial Level
§630
Interviewing the Expert
§631
By Telephone
§632
Face to Face
§633
The Expert’s Curriculum Vitae (CV)
§634
Expert’s Prior Cases
§635
Will the Expert Qualify?
§636
Does Expert Believe He or She Can Be an Asset to the Case?
§640
Fees, Expenses and Timing of Payments
§641
Retainer Fees
§642
Different Fees for Different Services
§643
Trial Testimony and Standby Fees
§644
Travel Fees (Advanced or Not)
§645
Retention Agreements
§646
Contingency Agreements
§647
Accounting of Expert’s Fees and Expenses
§648
Dispute Resolution of Fees/Costs
§650
Scope of the Expert’s Retention
§660
What Is the Expert to Opine On
§661
Relationship Between the Agent and Insured
§662
Formation of the Insurance Contract (Where, When, and How)
§663
Is the Claim Covered?
§664
Insurance Industry Customs and Practices
§664.1
Insurance Product Marketing
§664.2
Solicitation and Formation of Insurance Contract by Agent/Broker and
Agent/Broker’s Duties in Application Process
§664.3
Representations by the Agent/Broker at Formation of Insurance
Contract
§664.4
The Insurer’s Underwriting Department’s Underwriting Guidelines
§664.5
Issuance of the Insurance Policy
§665
Submitting and Processing of Insurance Claim
§665.1
Promptly?
§665.2
Thoroughly?
§665.3
Objectively?
§666
Avoidance of Appearance of Conflict of Interest Within Claims
Department?
§667
Avoidance of Appearance of Conflict of Interest Within “In-House”
Counsel Department
§668
Insurance Bad Faith Claims
§668.1
Processing
§668.2
Investigation
§668.3
Disclosure
§668.4
Coverage Investigation
§668.5
Objective Factual Analysis
§668.6
Coverage Analysis
§668.7
Low-Ball Issues
§668.8
Stonewalling Issues
§668.9
Wrongful Denial of Claim Issues?
§670
Special Investigation Unit—Insurer’s Fraud Unit
Key Points to Remember
Chapter 7. Settlement Negotiations and Compromises
§700
In General
§700.1
Characteristics of a Good Negotiator
§700.2
Negotiation Tips
§700.3
The Seven Social Sins of Negotiating
§701
The Beginning of the Sale
§701.1
Settling Smaller Cases Over the Phone
§702
Open Communications—Issues
§702.1
Coverage Issues
§702.2
Liability Issues
§702.3
Limit Issues
§702.4
Damage Issues
§702.5
Commitment from the Insurer
Sample: Letter of Admission
§702.6
Documentation of Commitment
§702.7
Reasonable Demands
§702.7.1
Time Limits
§702.7.2
Damages
§702.7.3
Assessment of Liability
§702.7.4
Monetary Damages
§703
Out of Court Dollars
§704
Reciprocal Good Faith Duties
§704.1
Prompt Response to Settlement Demand
§710
Reasonable Settlement Defined
§711
Sources of Standards
§712
Bilateral Duty to Start Negotiations
§713
Innovative Ways to Settle a Case
§714
Proving Pain and Suffering and Hedonic Damages to the Insurance
Company
§720
Support/Documentation of the Settlement Demand
§720.1
Demand vs. Offer to Settle
§720.2
Facts: Police Reports/Statements
§720.3
Law(s): Vehicle Code/Negligence
§720.4
Comparative Fault
§720.5
Damages: Documents/Reports
§720.6
Computations and Conclusions
§720.7
Reasonable Response Time
§730
Written Communications Only—Demands
§730.1
Full Disclosure
§730.2
Failure to Advise Insured
§740
A Trap for Attorneys: Comparative Fault and Policy Limits
§740.1
Negotiate Against the Value of the Case
§750
Compromise Considerations for the Insurer
§760
Compromise Considerations for the Plaintiff
§770
Compromise Considerations for the Plaintiff’s Attorney
§780
Maintaining Your Relationship With the Adjuster
§790
Checklists for Preparing Bodily Injury Settlement Packages
§790.1
Fact Gathering Checklist
§790.2
Fact Documentation Checklist
§790.3
Analysis
§790.4
Packaging the Settlement Demand
§790.5
Selling the Settlement Package
§791
How to Arrive at a Demand Figure
§791.1
Itemizing Compensation for Pain and Suffering
§791.2
Determining Lost Wages
§791.3
Loss of Enjoyment of Life Damages
§792
Settlements and Compromises—The Ten Commandments
Key Points to Remember
Chapter 7A. How to Succeed at
Settlement Conferences
§700A
In General
§710A
Know Your Audience—Determine What Is the Most Appropriate Forum for
Your Case to Settle
§720A
Be Prepared
§730A
Be Brief
§740A
Welcome and Anticipate Questions
§750A
Be Flexible and Innovative
§760A
Send a Lone Ranger, Not a Mongol Horde
§770A
Be Assertive, But Not Abrasive
§780A
Believe in Your Case
§790A
Know Your Aims
Chapter 7B. Common Negotiating
Mistakes
§700B
In General
§710B
Failure to Read Medical File Closely
§720B
Overpricing Claim Value
§730B
Lack of Objectivity
§740B
Fuzzy Demands, Using a
Value
Range
§750B
Running Up Specials
§760B
Assuming You Know How All insurers Value Cases
§770B
Failure to Properly Investigate Facts
§780B
Hubris
§790B
Loose Lips
§7100B
Mistaking Form for Substance in Demand Presentation
§7110B
Using Warped Sounding Boards
Chapter 8. Techniques Not Found in Claims Manuals
§800
The Claims Representative Has the Power
§810
Lowballing—Paying Less Than What Is Known To Be Owed
§811
Lowballing the Claimant
§812
Lowballing the Attorney
§813
Lowballing and Forcing an Arbitration
§814
Lowballing the Property Damage Claim and Its Effect on Personal
Injury Damages
§814.1
Handling Property Claim Gratis
§814.2
To Recover Fee, Ask Client for Lien
§814.3
Why Insurers Lowball Property Claims
§814.4
One Adjuster for Both Claims
§814.5
Insurer’s Strategy for Reducing Property and Bodily Injury Payouts
§814.6
Misleading Photos
§814.7
Ignoring Hidden Damage
§814.8
Incomplete Appraisals
§814.9
Insured’s Vehicle Damaged While Client’s Is Not
§814.10
Total Loss Payout
§814.11
Unrealistic Costs for Parts
§815
Forcing Policyholders to Sue to Get Coverage to Which They Are
Entitled
§820
Unreasonable Delays
§821
The Indicators of Poor Claims Management
§830
Stonewalling—Friend or Foe, You Get No Dough!
§831
“Benefits Delayed” Are “Benefits Denied”
§831.1
Unfair Leveraging
§831.2
Excess Coverage
§831.3
Economic Pressure
§831.4
Claims Maze
§831.5
Need Insured’s Cooperation First
§831.6
Nickel and Dime the Claimant
§831.7
Musical Chair Claim Adjusters
§831.8
Some Now—All Later
§831.9
Waiting for the Insured’s Contribution
§831.10
Setting Up the Claimant
§831.11
Fabricated Denial
§832
Stonewalling the Attorney
§833
Stonewalling the Insured
§840
Intimidation
§841
Retaliation
§842
Attacking the Claimant
§843
Social Duress and Blackmail
§850
Digging Into the Settlement Technique Grab Bag
§850.1
Seasonal Settlements
§850.2
Guidelines for Waiver of Bad Faith Claims in Settlements
§850.3
Backlog Settlements
§850.4
Nuisance
§850.5
Factoring
§850.6
Refusal to Negotiate
§850.7
The Hard Ball
§850.8
The Nice Guy Approach
§850.9
The Principled Approach
§850.10
Carrot and Stick—Example of Improper Claim Payments Tactics by an
Insurer
§860
Bad Faith Litigation Checklist
§870 Checklist of Unfair Claims Settlement
Practices
§880
Pretext Investigations
Key Points to Remember
Chapter 8A. Claim Complaints:
The Art of Being a Squeaky Wheel
§800A
Why Insurance Companies Behave Differently From Other Private
Companies
§810A
How Do You Complain?
§820A
Document Complaints
§821A
Letter to Adjuster
§822A
Letter to Supervisor
§823A
Letter to Home Office
§830A
Follow Up
Chapter 9. Claims Denials
§900
In General
§910
First Party Denials
§911
No Insurable Interest
§912
No Coverage
§913
Expiration of Statutes of Limitation and Tolling Issues Related to
Suing an Insurer
§914
Failed Condition of Policy
§914.1
Late Notice by Insured of Insurance Claim
§914.2
No Cooperation—Failure to Submit to Examination Under Oath
§914.3
No Proof of Loss
§915
Fraud by Insured
§916
Material Misrepresentation
§916.1
Life Insurance
§917
Intentional Act
§917.1
Criminal Act
§918
Policy Cancellations and Policy Rescissions
§919
Date of Loss Outside Policy Term and Trigger of Coverage Issues
§920
Policy Exclusions
§921
Exclusion Riders
§921.1
Driver Exclusion
§921.2
Vehicle Exclusion
§921.3
Territory Exclusion
§922
Punitive Damage, Penalties, and Fines
§923
Family Member Exclusion Void: Public Policy
§930
Word Games—Examples of How Undefined Policy Terms Can Result in
Coverage
§931
Not a “Vehicle”
§932
Not an “Insured”
§933
Not an “Agent”
§934
Not an “Accident”
§935
Not a “Roof”
§936
Not a Reasonable and Necessary Medical Treatment
§937
Not an “Occupant”
§938
“Use” of Vehicle; “Loading and Unloading”
§939
“Employee” v. “Independent Contractor”
§940
Third Party Denials
§941
No Coverage in Force
§942
No Liability on the Part of the Insured
§942.1
A Trap for the Insurer
§943
Fraud
§944
No Cooperation
§945
The Running of the Statute of Limitations
§946
Intentional Act
§946.1
Intent Difficult to Prove
§950
Duty to Defend Versus Duty to Indemnify: What Is the Difference?
§951
Dangerous Stand by Insurer
§960
Blind Denials
Key Points to Remember
Chapter 9A. Claim Evaluation Software
§900A
Insurers Use of Claim Valuation Software
§910A
Xactimate Software—Used to
Estimate
Building Repairs
§920A
Colossus
§930A
Jury Verdict Research; Free Verdict Reports Available
§940A
Caveats and Opportunities
§950A
Beware of GIGO—Garbage In Garbage Out
Chapter 10. Action Letter Outlines
§1000
In General
§1001
Voluntary Motivation
§1002
Involuntary Motivation
§1003
Ten Tips for Writing Effective Letters
§1010
Letters by the Attorney
§1011
Letter to the Adverse Motorist
§1012
Letter to the Agent
§1013
Introductory Letter to the Claims Representative
§1014
Letter to an Unresponsive Claims Adjuster
§1015
Letter to the Home Office of the Insurance Company
§1016
Letter to the Insurance Commissioner
§1017
Discovery Letter to the Insurance Adjuster
Sample: Discovery Letter to Insurance
Adjuster
§1020
Time Limit/Policy Limit Demand Letters
Sample: Time Limit/Policy Limit Demand
Letter to Adjuster
§1021
Property Damage Considerations
§1022
Additional Considerations
§1030
Settlement Demand Letters
Sample: Settlement Demand Letter to
Adjuster
§1040
Letters by the Insurance Company
§1041
Statute of Limitations Letter
§1042
Reverse Bad Faith Letters
§1050
Summary Checklist for Effective Demand Letters
§1060
Soft Sell
Key Points to Remember
Chapter 11. Releases and Covenants
§1100
In General
§1101
Release or Covenant Not to Sue
Sample: Release of All Claims
§1102
Releases and Covenants Functioning as Contracts
§1110
How a Release Works
§1111
Who and What Is Released?
§1112
Bargaining for Fair and Adequate Consideration
§1113
Determining the Legal/Mental Capacity of the Claimant
§1113.1
Obtaining Court Approval
Sample:
Parents’ Release and Indemnity Agreement
§1120
Specific Releases
§1121
Open/Limited Release
§1122
Signed Releases
§1123
Witnessed/Notarized Releases
§1124
When No Release is Signed—Walk Away Settlements
§1125
Signing Multiple Releases
§1126
Recording Releases Over the Telephone—A Very Questionable Practice
§1127
Reserving Extra Contractual Damages
§1128
Good Faith Release and Multiple Parties
§1129
Parents Release Indemnity Agreement
§1130
Breaking the Written/Signed Release
§1131
Fraud or Misrepresentation in the Inducement to Sign a Release
§1132
Reformation of the Release
§1133
Good Faith Settlement Exposure
§1133.1
Sliding Scale Rule
§1140
Covenants Not to Execute and Assignments
§1150
Mary Carter Agreements
§1160
Release of the Claim and Bad Faith
§1170
High Low Agreements
Key Points to Remember
Chapter 12. How to Estimate Bodily Injury Settlements
§1200
In General
§1201
What Is a Settlement Offer?
§1202
What Is the Scope of Bodily Injury Settlements?
§1203
What Is the Basis of Bodily Injury Settlements?
§1203.1
Disputed Liability or Damages
§1203.2
Undisputed Liability or Damage
§1210
Categories of Bodily Injury Damages
§1210.1
Current Damages
§1210.2
Future Damages
§1210.3
Rehabilitation Damages
§1210.4
Punitive Damages
§1210.5
Loss of Enjoyment of Life Damages
§1210.6
Loss of Inheritance
§1210.7
Loss of Consortium
§1220
Thirteen Steps in Evaluating a Bodily Injury Claim
§1220.1
Step One: Legal Liability of the Defendant
§1220.2
Step Two: Credibility and Quality of the Plaintiff
§1220.3
Step Three: Credibility of Plaintiff’s Doctor
§1220.4
Step Four: Pre-Existing Injuries
§1220.4.1
No Accounting
§1220.4.2
Independent Accounting
§1220.4.3
Double Conditional Accounting
§1220.4.4
Single Conditional Accounting
§1220.5
Step Five: Current Medical Expenses
§1220.6
Step Six: Current General Damages
§1220.6.1
Low
Range
Example
§1220.6.2
Mid Range Example
§1220.6.3
High
Range
Example
§1220.7
Step Seven: Current Lost Wages or Income
§1220.8
Step Eight: Future Medical Expenses—Projected
§1220.9
Step Nine: Future General Damages
§1220.9.1
Low
Range
Example
§1220.9.2
Mid Range Example
§1220.9.3
High
Range
Example
§1220.9.4
Special Note: Lifetime General Damages
§1220.10 Step Ten: Future Lost Wages or Income—Projected
§1220.11 Step Eleven: The Vocational/Professional Rehabilitation Expenses
§1220.12 Step Twelve: Punitive Damages
§1220.13 Step Thirteen: Loss of Enjoyment of Life Damages
§1230
Physical Capacities Evaluation
§1231
Some Plaintiffs May Be Barred From Recovery for Pain and Suffering
Key Points to Remember
Chapter 13. Underinsured Motorist Coverage
§1300
Elements of Coverage
§1301
The Insured Claimant’s Auto Policy Must Contain Coverage
§1302
The Claimant Must Sustain a Bodily Injury
§1303
The Claimant Must Be Legally Entitled to Recover From the Underinsured
Motorist
§1304
The Underinsured Motorist Must Be Insured—Otherwise an Uninsured Motorist
Claim
§1305
The Underinsured Motorist Must Have Bodily Injury Coverage With Limits Less
Than the Claimant’s Underinsured Limits
§1306
The Insured Claimant’s Insurer Stands in the Shoes of the Underinsured
Motorist
§1306.1
Potential Conflict of Interest
§1306.2
Avoiding Bad Faith by the Insurer
§1307
Arbitration of Disputes
§1307.1
Legal Liability
§1307.2
Damages
§1307.3
Total Damages—Not Policy Limits Damages
§1310
Procedures and Statute of Limitations Issues
§1311
The Insured Claimant’s Bodily Injury Claim Must Be in Excess of the
Underinsured Motorist’s Policy Limits
§1312
Putting the Underinsured’s Insurer on Certified Written Notice of
Underinsured Coverage Claim
§1313
File Suit Against Underinsured Motorist
§1314
Get “Permission” From the Underinsurance Insurer to Settle With Underinsured
Motorist
§1314.1
Exception
§1320
Offset and Exclusions
§1321
Excess Bodily Injury Claims of Both Policies
§1322
Computation of the “Total” Value of the Bodily Injury
§1322.1
Reasonable Expectation of the Insured Claimant—Policy Limits Due
Without Offset
§1322.2
Collateral Source Doctrine May Apply—No Offset
§1322.3
Exhaustion of Primary Limits of Liability
§1323
Exclusions
§1330
Minors
§1331
Most Policy Time Limits Apply Equally to Adults and Minors
§1340
Stacking Policies
§1341
Multiple Vehicles on a Single Policy
§1342
Multiple Policies for Multiple Vehicles Issued to the Insured
§1343
Independent Multiple Policies
§1350
Distinguishing Uninsured From Underinsured Motorist Coverage
§1360
Subrogation
§1370
Underinsured Motorist Carriers Bad Faith Conduct
§1380
Special Notes
§1390
Punitive Damages
Key Points to Remember
Chapter 14. How to Take a Claims Representative’s Deposition
§1400
Pre-Deposition Homework
§1410
Subpoenaed or Requested Documentation
§1410.1
The Claims File and Loss Reserves
§1410.2
The Claims Manual
§1410.3
The Policy Manual
§1410.4
The Claims Representative’s Personnel File
§1410.4.1
Job Description
§1410.4.2
Goals for Previous Year of Employment
§1410.4.3
Goals for Current Year of Employment
§1410.4.4
Promotions or Demotions—Why?
§1410.4.5
Case Load Count
§1410.4.6
Enrolled Courses and Education
§1410.4.7
General Duties and Responsibilities
§1410.4.8
Longevity-Old Timer or Rookie?
§1410.4.9
Why Was the Claims Representative Assigned This Particular File?
§1410.4.10
The Attorney/Adjuster
§1410.5
The Insurance Policy—Make Sure You Have a Complete Copy
§1410.5.1
Endorsements
§1410.5.2
Amendments
§1410.5.3
Policy Jacket
§1410.5.4
Declaration Sheet(s)
§1410.5.5
Application
§1410.6
Loss Reserve History
§1410.6.1
Original
§1410.6.2
Changes
§1410.6.3
Discoverability
§1410.6.4
Reinsurance Documents
§1410.7
The Agent’s Policy File
§1410.8
The Agent’s Claims File
§1410.9
The Reinsurance Treaty
§1410.10 The Reinsurance Claims File
§1410.11 The Underwriting File
§1410.12 Training Manuals/Publications
§1410.13 The Marketing/Advertising Brochures
§1410.13.1
Promises Made to Induce New Business
§1410.14 Consumer Surveys/Spot Checks
§1410.15 Special Reports
§1410.15.1
Reinsurer
§1410.15.2
Pacific Coast Index Bureau
§1410.15.3
Property Insurance Loss Register
§1410.15.4
Suit Committees
§1410.16 Insurer’s Philosophies
§1410.16.1
Service
§1410.16.2
Peace of Mind
§1410.16.3
Trust
§1410.16.4
Compliance With Unfair Claims Practices Acts
§1410.17 Employee’s Orientation Manual
§1410.18 Log of Public/Policy Holder Complaints
§1410.19 Register of Complaints
§1410.20 Company Guidelines for Letter Writing
§1410.21 Chart of Claims Network—Chain of Command
§1410.22 Financial Reports
§1410.23 Ethical Codes to Which the Insurer Subscribes
§1410.24 Outline: Request for Production of Documents
§1410.25 Bad Faith Lawsuits
§1410.26 Reserves
§1410.27 Video Magazines
§1420
Interrogatories to the Claims Representative
§1430
The Deposition Notice
§1431
Has the Claims Representative Brought All Claims Files?
§1432
Have the Claims Representative Bring the Claims Manual
§1440
The Deposition—Introduction
§1440.1
Video Depositions
§1440.2
Setting the Stage for Your Examination
§1450
The Deposition—Foundation
§1460
The Deposition—The Case in Chief
§1470
Spoliation of Evidence
§1480
Attorney-Client Privilege
§1490
Special Deals Between Insurers and Court Reporters
Key Points to Remember
Chapter 15. Bad Faith—Bad News
§1500
General Principles and Definitions
§1500.1
Scope of Coverage
§1500.2
Origins of Bad Faith Actions
§1501
Bad Faith
§1501.1
Non Insurance Companies — HMO
§1502
Extra-Contractual Damages
§1503
Assignment of Bad Faith
§1504
Lien Rather Than Assignment
§1505
A Working Definition of Bad Faith
§1505.1 The Unreasonable
§1505.2 Withholding
§1505.3 Policy Benefits
§1505.4 Without Proper Cause—Excuse
§1505.5 Equitable Subrogation by an Excess Insurer
§1506
Alter Ego: Parent and Subsidiary Corporations
§1510
The Four Major Areas of Bad Faith
§1511
Wrongful Denial of Coverage
§1511.1
Failure to Indemnify the Insured for Property First Party Claims
§1511.2
Failure to Defend the Insured and Pay Settlements and Judgements on
the Insureds Behalf
§1511.3
To the Claimant
§1512
Unreasonable Delay of Benefits
§1513
Underpayment of Claimed Benefits
§1513.1
Intentional
§1513.2
Negligent
§1520
First Party Bad Faith
§1521
Implied-in-Law Covenant
§1521.1
Use of Unfair Claims Practices Statutes
§1522
Fiduciary Duties Owed the Insured
§1523
ERISA
§1524
Premature Arbitration by Insurer
§1524.1
Bad Faith Arbitration
§1525
Third Party Beneficiaries—When Can They Claim Insured Status?
§1526
Additional Insureds
§1530
Bad Faith Wrongful Death
§1540
Theories of Extra-Contractual Damages for First Party Claimants
§1541
Common Law Bad Faith
§1542
Examples of Unreasonable Withholding
§1542.1
Deceptive Claims Practices
§1542.2
Intimidation Claims Practices
§1542.3
Failure to Communicate
§1542.4
Failure to Educate
§1542.5
Capricious Cut-Off of Benefits
§1542.6
Arbitrary Declaratory Relief
§1542.7
Failure to be Objective
§1542.8
Distorted Policy Interpretation
§1542.9
Unreasonable Delay of Payment
§1542.10 Failure to Thoroughly Investigate
§1542.11 Failure to Reconsider Denial
§1542.12 Breaches of Unreasonableness During Litigation
§1542.13 Failure to Settle When Liability Is Reasonably Clear
§1542.14 Incompetence of Insurer’s Investigator
§1542.15 Extortion
§1542.16 Encouraging Adjusters to Practice Lowballing Insurance Claims
§1542.17 Failure to Defend
§1542.18 Bad Faith/Negligent Defense
§1542.19 Interference With the Insured’s Representation
§1542.20 Forcing Claimant Into Arbitration
§1543
Breach of Fiduciary Duty
§1543.1
Service
§1543.2
Peace of Mind
§1543.3
Trust
§1544
Statutory Bad Faith
§1545
Exception to the “Fairly Debatable Rule”
§1546
Denial of Claim Based on Void Exclusion
§1547
Fraud
§1548
Insurer’s Negligent Release of the Insured’s Claim Against a Third Party
§1549
Negligent Referrals
§1550
Theories of Extra-Contractual Damages for Third Party Claimants
§1550.1
Fraud, Deceit, Misrepresentations
§1550.2
Intentional Infliction of Emotional Distress
§1550.3
Excess Judgments
§1550.3.1 Excess Insurer’s
Bad Faith Claim Against Primary Insurer
§1550.4
Trial of Bad Faith Claim Before Coverage Issue
§1550.5
Third Party Beneficiary
§1550.6
Statute
§1550.7
Case Law
§1550.8
Lack of Coverage Under Policy
§1550.9
Reserved
§1550.10 Strict Liability
§1551
Coaching the IME Doctor
§1552
Information Sharing by SIUs
§1560
Defenses to Bad Faith Actions
§1561
Statutory Privilege
§1562
No Unreasonable Withholding
§1563
Release of Bad Faith
§1564
Mandatory Arbitration
§1565
Claims Representative’s Reliance on Advice of Counsel
§1566
Statute of Limitations
§1566.1
“Time to Sue” Policy Provision
§1567
Comparative Bad Faith
§1568
Federal Pre-Emption
§1568.1
Exceptions
§1569
Workers’ Compensation Exclusive Remedy
§1569.1
Exceptions
§1570
Damages
§1571
Tort or Extra-Contractual Damages
§1572
Contractual Damages
§1572.1
Non Adjunct Bad Faith Cases
§1573
Punitive Damages
§1574
Warning Signs of Punitive Damages
§1575
Emotional Damage Need Not Flow From Economic Loss
§1576
Treble Damages Under RICO
§1580
Bad Faith Liability When There Is No Coverage
§1590
Public Bad Faith Fines
§1591
Defendant—Independent Adjusting Firms
§1592
Tort Reform Has no Effect on Insurance Premiums
Key Points to Remember
Chapter 15A. Extraordinary Bad Faith Cases
§1500A
Introduction
§1501A
Campbell v. State Farm
Insurance
§1501.1A Update
§1502A
Middler v. State Farm Insurance
Companies
§1503A
State Farm Fire and Casualty
Company v. Superior Court (Taylor)
§1503.1A Declarations of Amy Zuniga in
State Farm v. Superior Court
§1503.2A Declaration of Amy Zuniga
in Stoliar v. State Farm
§1504A
Robinson v. State Farm Mutual
Automobile Insurance Company
§1505A
Betty Olson v. State Farm
Mutual Insurance Company
§1506A
Allstate Insurance Company's 9000 Reconsideration Claims
§1507A
State Farm Auto Insurance Company Takes a $1.2 Billion Hit
§1508A
Teresa Goodrich v. Aetna U.S. Health Care of California, Inc.
§1509A
Diamond v. General American
Insurance Company
Chapter 15B. Common Claim Myths
§1500B
In General
§1501B Myth #1:
“Threatening to File Suit Will Soften Adjuster’s Position”
§1502B Myth #2:
“Insurers and Adjusters Use ‘Three-Times-Specials’ Formula”
§1503B Myth #3:
“It’ll Be More Expensive to Defend Than to Settle”
§1504B Myth #4:
“Time Limit Demands Usually Expedite Adjuster Responses”
§1505B Myth #5:
“Adjusters Receive Bonuses Based on What They ‘Save’ Off a Claim”
§1506B Myth #6:
“Adjusters Cannot Evaluate Cases as Well as Attorneys”
§1507B Myth #7:
“The Insurer Denied My Claim; However, I am Confident That the Claim
Is Covered. If I Ask the Insurer to Reconsider, I Probably Will Not Have to
Sue to Get Coverage”
§1508B Myth #8:
“A Wrongful Denial of a Claim Will Automatically Subject the Insurer
to Punitive Damages”
§1509B Myth #9:
“The Insurer Must Have a Reasonable Basis for Denying the Claim
Because It Issued a Long Letter Explaining That the Claim Is Denied”
§1510B Myth #10:
“I Was Treated so Badly by the Insurance Company That I am Certain a
Lawyer Will Take My Case on Contingency”
§1511B Myth #11:
“If I Sue the Insurance Company, It Will Teach Them a Lesson and They
Will Not Do the Same Thing to Other People”
§1512B Myth #12:
“I lost the Insurance Policy Copies That Prove I Have Used This
Insurance Company for the Last Twenty Years, and the Insurer Is Required to
Have Saved Copies”
§1513B Myth#13:
“The Adjuster Working on May Claim Is Probably Well Trained and the
Insurer Would Not Use the Adjuster if the Adjuster Did Not Know What He/She
Was Doing”
§1514B Myth #14:
“The Adjuster Working on the Claim Is Directly Employed by My
Insurance Company”
§1515B Myth #15: “My Claim
Is Clearly Covered and the Insurer Has Not Asserted Any Policy Limitations,
Defenses or Exclusions; Therefore, I Should Expect the Claim to Be Paid
Within the 30-Day Period Prescribed by Most Insurance Regulations”
§1516B
Myth #16: “The Insurer Says the Policyholder’s Conduct Related to the
Claim Was Intentional and Therefore They Are Justified in Denying My Claim
Chapter 16. Settling the $5,000 to $75,000 Bodily Injury Claim
§1600
Introduction: The “Bread-and-Butter” Case
§1610
This Is Not the Lottery
§1620
Limited Partnership
§1630
Funding the Settlement
§1640
Finding the Funder
§1650
Preparation for Preliminary Negotiations
§1660
The Sale—What the Case Is
Worth
§1670
Hypothetical Case From Start to Finish
§1671
Sample: Settlement Letter to Adjuster re Hypothetical Case
§1672
Analysis of Demand Letter
§1673
Conclusion
§1673.1
Attorney’s Liability-Settling Too Low
§1680
Trying the “Bread and Butter” Case
Chapter 17. Uninsured Motorist Claims
§1700
Introduction
§1710
Definition of Uninsured Motorist Vehicle
§1711
Causal Connection of Bodily Injury
§1720
Definition of Insured
§1721
Third Party Beneficiaries
§1730
Uninsured Motorist Coverage
§1731
Limits of Liability
§1732
Stacking Coverage
§1733
Property Damage
§1734
Offset Procedures
§1735
Notice to Insurer
§1736
Relatives
§1737
Joint and Several Liability
§1738
Physical Contact
§1740
Statute of Limitations
§1750
Discovery
§1760
Arbitration
§1761
Amounts Recoverable in Arbitration
§1770
Subrogation
§1780 Exclusions
§1790
Offsets
Chapter 18. The Claims Department and the Claims Manual
§1800
Insurance Is a Transfer of Risk for Money Involving Loss Ratios
§1810
What the Policy Promises
§1811
What the Agent Said the Policy Promises: Is It a Managing General Agent?
§1812
What the Advertising Implies That the Policy Promises
§1813
What the Courts Say the Policy Promises
§1814
Implied Promises—Minimum Standards
§1815 Four Corners of the Philosophy
§1815.1
Service
§1815.2
Trust
§1815.3
Protection
§1815.4
Peace of Mind
§1820
Who Carries Out Promises—The Claims Department
§1821
The Claims Department—The Leak in the Dike
§1830
The Claims Manual
§1831
General Topical Sections
§1831.1
Forward
§1831.2
Draft Authority
§1831.3
Components of a Prompt, Thorough, Objective File: Example—Automobile
Claim
§1831.4
Statements
§1831.5
Desirability of Risk
§1831.6
Index Bureau
§1831 7
Releases
§1831.8
Lien Laws—Attorneys, Doctors and Hospitals
§1831.9
Time Limit/Policy Limit Demands
§1831.10 Federal Tort Claims Act
§1831.11 Alternative Settlement Options
§1831.12 Advances for Medical Payments and Wage Loss Claims
§1831.13 No Release
§1831.14 Admitted Ambiguity in Policy
§1831.15 Like Kind and Quality Parts
§1831.16 Depreciation Tables and Betterment
§1831.17 Glass Breakage
§1831.18 Conference Report on Fair Insurance Claims Adjustment—Preamble
§1831.19 Guiding Principles Relating to Auto Insurance Claims
§1831.20 Statement of Principles in Determining Damage to Vehicles
§1831.21 National Conference of Lawyers and Liability Insurers Guiding
Principles
§1831.22 First Call Bodily Injury Settlements
§1831.23 Denial of Claim
§1831.24 Concurrent Insurance Coverage
§1831.25 Comparative Negligence
§1831.26 Non-Waivers
§1831.27 Boilerplate Policy Defenses
§1831.28 Permissive User
§1831.29 Subrogation
§1831.30 Arbitration
§1831.31 Inter-Insurance Arbitration Agreement
§1831.32 Staffing Ratio—Adjusters to Caseload
§1831.33 Education
§1831.33.1
Claims Schools
§1831.33.2
On-the-Job Training
§1831.33.3
Continuing Education
§1831.34 Those Other Doctors
§1831.35 Coverage Inclusions and Exclusions
§1831.36 Excess Liability Insurer’s Duties Are Triggered Prior to Primary
Policy Exhaustion
§1832
Counsel’s “Claims Manual”
§1840
The Claims Representative as a Witness
§1850
Reservation of Rights Letter
Sample: Reservation of Rights Letter
§1860
Proof of Loss
§1870
Investigation Practices
§1871
“Questionable” Claims
§1872
Investigations That Violate Claims Manual
§1880
Claim Department Payment Policies Can Vary
Key Points to Remember
Table of Cases
Index
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