insurance settlements - james publishing · §414.2 pay your own attorney fees §414.3 protracted...

(Rev. 19, 1/12)

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SUPPLEMENT EDITING BY DONNA COLE, ESQ.

PRODUCTION EDITING BY

LEANNE CAZARES AND AMANDA WINKLER

INSURANCE SETTLEMENTS

RONALD V. MILLER, JR. KEVIN M. QUINLEY

VOLUME 1

Copyright © 2012James Publishing, Inc.ISBN #0-938065-53-X

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F-2

Table of Contents

I. CLAIMS HANDLING

1. How Insurance Companies Process Claims2. The Claims Review Process: How to Win Claims and Influence Claims Adjusters3. Aspects of Claims Frequently Questioned by Adjusters3A. Spotting and Countering Adjuster “Dirty Tricks”4. Managing the Client’s Expectations

II. VALUING CLAIMS

5. How Insurance Companies Value Claims6. Determining and Proving Economic Damages7. [Reserved]8. How Reserves Are Established8A. Questions to Ask Insurance Experts9. Proving Pain and Suffering

10. Handling Preexisting and Subsequent Injuries11. Proving Hedonic Damages12. Using Experts in Valuing and Settling Claims12A. Harnessing the Internet as a Claim Evaluation and Settlement Tool12B. Using Focus Groups and Mock Trials as Tools for Personal Injury Claim Evaluation

III. EVALUATING COVERAGE

13. Determining Coverage and Obtaining Policy Limits13A. Questions to Assess Coverage Problems14. What to Do When Liability Is Denied14A. Homeowner’s Insurance Coverage for Mold Claims

IV. DOCUMENTING CLAIMS

15. Drafting Effective Demand Letters and Settlement Brochures16. What Adjusters Need to Settle Claims17. Chiropractic Treatment in Soft Tissue Injury Cases18. Attorneys’ Guide to Medical Records18A. Countering Defense Independent Medical Examinations19. Common Mistakes Made by Plaintiffs’ Attorneys in Documenting Claims20. Analyzing Opinion Letters: A Physician’s Insights on the Quality of Medical Reports

F-3 (Rev. 19, 1/12)

V. EFFECTIVE NEGOTIATION

21. Negotiating Insurance Claims 22. Establishing Bad Faith23. How to Negotiate With Insurance Companies and Avoid Settlement Delays24. Maximizing Damages in Small Personal Injury Cases25. Twenty-Six Tips From Seasoned Claims Adjusters25A. Mediation Tips for Personal Injury Counsel

VI. EFFICIENT SETTLEMENT

26. Evaluating Settlement Offers26A. Settlement Ethics27. Structured Settlements: Opportunities, Problems and Benefits28. Appraisal of Insurance Claims29. Solving Common Settlement Problems29A. Handling Inflated and Other Liens

VII. SPECIFIC TYPES OF CASES

30. Evaluation of Soft Tissue Injury Claims31. Evaluating and Settling Medical Malpractice Claims31A. Investigating Cell Phone Use in Vehicle Liability Claim Recoveries32. Settling Auto Accident Cases33. Avoiding and Resolving the Classically Weak Case34. Trauma & Post Traumatic Stress Disorder (PTSD): A Brief Primer for Civil Litigation35. Stacking Un/Underinsured Motorist Coverages35A. Investigating Slip and Fall Claims36. Investigating and Litigating Nursing Home Abuse37. Investigating and Evaluating the Product Liability Claim38. Investigating False Arrest Claims39. Investigating Negligent Security Claims in Pursuing Damages for Crime Victims40. Investigating Workplace Violence Claims41. Sexual Molestation Claims: Liability and Coverage Issues42. How to Combat Smaller and Smaller Settlement Offers in Minor Impact Soft Tissue Injury Cases

F-4

INSURANCE SETTLEMENT HANDBOOK

I. CLAIMS HANDLING

Chapter 1: How Insurance Companies Process Claims

§100 Creation of a Claim§101 The Reporting Process

§101.1 Reporting to the Agency Which Sold the BusinessSample: Automobile Loss NoticeSample: General Liability Loss NoticeSample: Property Loss Notice

§101.2 Reporting to the CarrierSample: Telephone Claims Report

§102 Policy and Coverage Verification§103 Assignment for Handling

§103.1 Resolution by “Fastrack”§103.2 Additional Information Requested by Correspondence

Sample: Statement of Claim§103.3 Additional Investigation by Telephone or Correspondence

Sample: Schedule of Lost ContentsSample: Claimant’s Report of Automobile Accident

§103.4 Field Investigation — Staff Adjuster or Independent Adjuster§110 Checklist: Primary and Secondary Duties of the Adjuster§120 Accomplishing Primary Duties

§121 Interviewing Parties Directly Involved§121.1 Proper Identification of Interviewee§121.2 Establishing Relationships of Parties Directly Involved§121.3 Developing Facts From the Perspective of the Interviewee§121.4 Determining the Specific Nature of the Injury or Property

Damage§121.5 Determining the Specific Loss Associated With the Injury or

Property Damage§121.6 Developing Any Ancillary Problems§121.7 Conducting an Assessment of the Interviewee§121.8 Developing Leads

§122 Confirming and Preserving Facts§122.1 Official Records§122.2 Inspection of Accident Site§122.3 Inspection of Damaged Property§122.4 Documenting Property Loss§122.5 Assembling Medical Documents

Sample: Medical Report (Simple)§122.6 Interviewing Witnesses

Sample: Witness Statement§122.7 Following Up on Developed Leads

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TABLE OF CONTENTS

§130 Performing Secondary Duties§131 Factors Affecting Claim Investigation

§131.1 Training§131.2 Caseload§131.3 Adjuster Compensation

§132 Evaluating Exposure§133 Reserving

§133.1 Specific Methods of Reserving§133.2 Reserve Runs§133.3 Opening Reserve From Loss Notice§133.4 Primary Reserves§133.5 Reserve Review

§134 Reporting§134.1 Informing Superiors of Details§134.2 Recommending Reserves

Sample: Claimant Summary§134.3 Reserves for Plaintiffs’ Counsel§134.4 Suggesting an Action Plan§134.5 Requesting Settlement Authority

Sample: Individual Settlement Worksheet§135 Preparing Draft Request to Disbursal Center§136 Salvage§137 Subrogation and Contribution

§140 The Negotiation Process§140.1 Settlement Conferences§140.2 Disputed Coverage

§150 Risk and Insurance Management§151 Risk Managers§152 Risk Identification and Evaluation§153 Risk Treatment§154 Claim Handling

§160 Litigation§170 Catastrophic Injury Claims

§171 Inside Claims Management§171.1 Defining “Catastrophic Injury”§171.2 Stages of Catastrophic Cases

§172 Preparing for and Responding to Catastrophic Case Issues

Chapter 2: The Claims Review Process: How to Win Claims andInfluence Claims Adjusters

§200 Introduction§201 Two Prerequisites to Closing the Claims File

§210 Providing the Necessary Documentation§211 Documenting and Proving Liability§212 Documenting and Proving Damages§213 Medical References

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§220 Evaluating the Claim§221 Settlement vs. Verdict Value§222 Kinds of Damages — Factors§223 Is the Claim Within Normal Limits?

§230 The Adjuster’s Settlement Authority§240 Working With Independent Claims Adjusters

Chapter 3: Aspects of Claims Frequently Questioned by Adjusters

§300 Introduction§310 General Questions Adjusters Ask

§311 First Party Claims§311.1 Fire Loss§311.2 Burglary Loss§311.3 Liability Coverage§311.4 Uninsured Motorist Claim

§312 What Adjusters Look for in Evaluating Claims§312.1 Causal Relationship Between the Accident, Injury, and Medical

Records§312.2 Proportionality§312.3 Correlation Between the Medical Records and Treatment

Received§312.4 Complete Records and Supporting Documentation§312.5 Lost Wage Documentation

§320 Red Flag Areas on Basic Claims§320.1 First Party Casualty Losses§320.2 First Party Property Losses§320.3 Third Party Liability Claims§320.4 Workers’ Compensation

§321 How Claims Adjusters Use Surveillance§321.1 Surveillance Evidence§321.2 Surveillance Considerations§321.3 Flagging Cases for Surveillance§321.4 Surveillance Options

§321.4.1 Outside Adjusters§321.4.2 Professional Surveillance Firms§321.4.3 Surveillance Firm Qualifications

§321.5 Preventing and Thwarting Surveillance Problems§330 The Ramifications of Insurer Involvement in Claims

§331 Duty to Defend§332 Reservation of Rights Letters

§321.1 Reasons for Issuing§321.2 Two Common Concerns§321.3 Impact on Recipient§321.4 Responding to Reservation of Rights Letters

F-7 (Rev. 19, 1/12)

TABLE OF CONTENTS

§333 Conflict of Interest§334 Index Bureau§335 Fraud§336 Permissive Use Cases§337 Other Insurance

§340 Contracts Affecting Liability or Responsibility§350 Specific Categories Adjusters Watch Out for

§351 Problems Raised by Product Liability Cases§352 Fraud§353 Permissive Use§354 Other Insurance

§360 Insurer Special Investigative Units (SIUs)§361 Factors Suggesting Fraud

§361.1 Personal Factors§361.2 Case Factors

§370 Conclusion

Chapter 3A: Spotting and Countering Adjuster “Dirty Tricks”

§300A Introduction§310A State Unfair Claim Practice Laws§320A Insurer Motivation§330A Common Adjuster Ploys

§331A “I’d like to take your statement.”§332A “Please sign this Medical Authorization Form.”§333A “Why do you need an attorney? I’ll work with you on the claim.”§334A “I’m here to canvass the neighborhood.”§335A “If you don’t accept this amount now, we will withdraw all offers.”§336A Colossus

§340A Tips for Complaining About Adjuster “Dirty Tricks”§341A Letter to Adjuster§342A Letter to Supervisor§343A Letter to Home Office§344A Letter to State Insurance Commissioner

Chapter 4: Managing the Client’s Expectations

§400 Types of Clients — Decision Makers and Others§401 Paying Clients

§401.1 Hourly§401.2 Contingency§401.3 Flat Fee

§402 Nonpaying Decisionmakers§402.1 Third Party Beneficiary (Insureds)§402.2 Indigent/Pro Bono§402.3 Institutional/Corporate

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§402.4 In-House Counsel§402.5 Insurance Companies§402.6 Defense Counsel Duties to Insured and Insurer

§410 Entering the Battle — Clients’ Initial Expectations§411 “The Injured” and “The Accused”§412 Truth§413 Justice§414 Reality: The American Rule

§414.1 Money Damages Only (Usually)§414.2 Pay Your Own Attorney Fees§414.3 Protracted Battle and Delay

§420 Educating You and Your Client§421 The Initial Contact§422 Do I Take the Case?

§422.1 Red Flags of Danger§422.2 Contingent Fee Agreement

§423 Writing to the New Client§424 Gathering Information§425 Evaluating the Case — Your Professional Opinion

§425.1 Talking About Liability§425.2 Talking About Damages§425.3 Further Handling

§430 Talking About Settlement§431 The First Demand and Offer: Valuation§432 The Realistic But Hopeful Settlement Offer§433 The Offer the Opponent Cannot Accept§434 Continued Negotiations§435 Talking About Negotiation Strategies

§440 Sources of Client Misinformation§441 Popular Culture§442 Client Relations and Communications

§442.1 Communication Techniques§443 Failure to Respond to Inquiries§444 Interference by Others§445 The Multi-Million Dollar Settlement

§450 Controlling Unrealistic Expectations§451 Can You Control Your Client?§452 How to Get Your Client to Trust You§453 Sources of Assistance§454 Should You Withdraw?

§460 Responding to Complaints§461 Your Fee in the Balance§462 Collecting Unpaid Fees

§470 Managing the “Difficult” Client§471 Introduction§472 Factors Making Clients Difficult

§472.1 Naiveté About the Court and Tort System

F-9 (Rev. 19, 1/12)

TABLE OF CONTENTS

§472.2 Grandiose Expectations of Financial Recovery§472.3 They Feel Bad§472.4 They Face Financial Pressures§472.5 Misplaced Expectations for Retribution or Vindication§472.6 You Have Many Cases — They Have One§472.7 Distrust of Lawyers§472.8 “Peanut Gallery” Advice

§473 Practical Hints for Spotting and Avoiding the Difficult Client§473.1 Telltale Danger Signs§473.2 Trust Your Gut§473.3 Index Your Client

§474 Whether to Disengage§475 Disengagement Techniques§476 Client Control Issues in Managing Difficult Clients§477 Adversaries Have Client Control Issues§478 Conclusion

II. VALUING CLAIMS

Chapter 5: How Insurance Companies Value Claims

§500 Overview§501 Introduction

§510 Claim Organizations — Insurance Carriers and Others§510.1 Anatomy of a Claim Department§510.2 Claim Department Organization §510.3 Role of Caseloads in Adjuster Evaluations§510.4 Role of Claim Valuation Software

§511 Insurance Company Classifications§511.1 Commercial Carriers§511.2 Personal Lines Carriers

§512 Organizations Retaining Claims Exposure§512.1 Self Insureds§512.2 Self-Insured, Self-Administered Entities§512.3 Uninsured Defendants

§513 Noncarrier Claim Organizations§513.1 Third Party Administrators (TPAs)§513.2 Independent Insurance Adjusters

§514 Summary§520 Flexibility in Settlement Evaluations

§521 Settlement Ranges§522 Effect of Plaintiff’s Demand

§522.1 Effect of Policy Limits Demand§530 Economic Factors Affecting Case Evaluation

§531 Medical and Related Expenses§532 Loss of Earnings and Earning Capacity§533 Defense Costs

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§540 Noneconomic Factors Affecting Case Evaluation§541 Estimates of Liability

§541.1 Probability of Liability§541.2 Comparative Negligence§541.3 Contributions and Other Factors§541.4 Claim Committees

§542 Insurance Matters§542.1 Insured’s Attitude and Control§542.2 Amount of Insurance§542.3 Excess Carrier Involvement§542.4 Coverage Disputes§542.5 Insurance Policy Provisions Regarding Valuation of Claims

§543 Effect of Elaborate Settlement Proposals§544 Jurisdiction§545 Codefendant Factors

§545.1 Opportunity for Indemnity§545.2 Self-Insured or Uninsured Codefendant

§546 Threats of Bad Faith§547 Horror Factor§548 Plaintiff Attorney Experience and Reputation§549 Reference to Jury Verdict Reports

§550 Common Evaluation Techniques§551 The X Times Specials Formula§552 [Reserved]§553 Earnings as Index to Special Damages§554 Judgment/Experience Method§555 Scheduled Evaluation Methods

§555.1 Unit of Disability Method§555.2 Hourly Unit of Time

§556 Computer/Statistical Methods§560 Case Evaluation Examples Based Upon Case Severity

§560.1 Assigning Unit Values§560.2 Evaluation of Permanent Disability

§561 Minor Injury Cases§562 Significant Injury Cases§563 Catastrophic Injury Cases

§563.1 Loss of Earnings and Earning Capacity§563.2 Future Medical Care§563.3 Wrongful Death Claims

§570 Alternate Resolution Methods§571 Pretrial Settlement Conferences§572 Arbitration§573 Mary Carter Agreements§574 Separate Settlements§575 Structured Settlements

F-11 (Rev. 19, 1/12)

TABLE OF CONTENTS

§580 Adjuster Evaluation Ploys & Other Insider Info§581 Evaluation Ploys§582 Ten Methods to “Unfreeze Adjuster” Case Evaluations§583 Confessions of a Claims Adjuster§584 Common Insurance Claim Evaluation Myths

Chapter 6: Determining and Proving Economic Damages

§600 Elements of Economic Damages§601 Loss of Income Production§602 Loss of Economic Opportunity

§602.1 Labor Shortages in the 21st Century§603 Loss of Labor and Skills to Family§604 Loss of Postinjury Worklife Income and Estate Value

§604.1 Changes in Social Security Retirement Age§605 Loss of Personal/Family/Social Relationships

§605.1 Hedonic Damages§606 Losses and Expenses Related to Vocational Rehabilitation

§606.1 Order of Selection§610 Documenting Economic Damages

§611 Defining Postinjury Capability§612 Defining Residual Functional Capacity

§612.1 AMA Permanent Impairment Rating§612.2 Evaluating Work Tolerance§612.3 Job Search and ADA

§613 Defining Transferable Skills and Capacities§613.1 Standard Vocational Assessment Techniques

§620 Proving Loss of Past Wages and Future Economic Opportunity§621 Defining Preinjury Income Stream and Career Development Potential§622 Defining Individual Postinjury Career Development and Income Potential§623 Defining Postinjury Career Development and Income Potential With

Generic Data§624 Estimating Length of Worklife

§630 Death or Disablement of Unemployed Persons§631 Employers and the Disabled§632 Documenting Good Faith Job Search

§632.1 Faulty Application Forms§640 Defining Contribution of Labor and Skills to Family

§641 Fair Market Value of Household and Personal Services§650 Loss of Post-Worklife Income and Estate Value

§651 Reduced Pension and Social Security Income§652 Reduced Savings and Property Holdings

§660 Adjustment to Changes in Lifestyle Caused by Economic Damages andRestriction of Opportunities§661 Independence and Avocational Pursuits

§661.1 ADA and Public Access

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§662 Self-Concept and Self-Esteem§662.1 Worst-Case Scenario

§663 Career Development and Stagnation§670 Vocational Rehabilitation Intervention

§671 Establishing Plaintiff Feasibility for Rehabilitation Intervention§672 Vocational Rehabilitation Services§673 Rehabilitant Profile§674 The Rehabilitation Counselor as a Vocational and Present Value

Expert Witness§674.1 Rehabilitation Economists

§675 Assessments for Evaluating Economic Damages§676 Present Value Computation

Sample: Present Value Computation§677 Economic Impact of Vocational Rehabilitation

Sample: Table Showing Economic Impact With Vocational Rehabilitation§678 Economic Impact of No Vocational Rehabilitation

Sample: Table Showing Economic Impact Without Vocational Rehabilitation§680 Intangible Variables Which Affect Evaluation of Damages

§681 Defining Individual Differences§682 The Agony of Litigation

§690 Defining Objective Measures of Damages

Chapter 7 [Reserved]

Chapter 8: How Reserves Are Established

§800 In General§801 What Are Reserves?§802 Financial Implications of Reserving§803 Reserves and Settlement

§810 How Reserves Are Established§811 Elements of Consideration When Setting Reserves§812 Sample Case Evaluation§813 Reserve Guidelines

§820 Specific Methods of Reserving§821 Average Value Method§822 Loss Ratio Method§823 Tabular Value Method§824 “Reserved to Exposure”§825 Reserve Review

§830 How Reserves Are Used§831 Importance of Reserves to Adjusters§832 Adjusting Reserves§833 Summary of Factors Contributing to a Claim Evaluation

§840 Example of Case Reserving§850 Conclusion

F-13 (Rev. 19, 1/12)

TABLE OF CONTENTS

Chapter 8A: Questions to Ask Insurance Experts

§800A Introduction§810A Checklist — Questions for Insurance Experts§820A Resources for Finding Insurance Experts

Chapter 9: Proving Pain and Suffering

§900 Introduction/Sources of Proof§910 Investigating and Preparing Your Case§920 Negotiating (Trying) Your Case to the Insurance Company§930 Settlement Practice Tips and Tactics§940 Litigation — Trying the Case to a Jury§950 Checklist: The Ten Commandments of Proving Pain and Suffering

Chapter 10: Handling Preexisting and Subsequent Injuries

§1000 Overview§1010 Preliminary Investigation

§1011 Query the Client§1011.1 Importance of Honesty

§1012 Preexisting Injury or Preexisting Condition§1012.1 Medical Records

§1013 Investigate Prior Injuries§1013.1 Prior Accidents§1013.2 Primary Care Physicians§1013.3 Medical Textbooks

§1014 Investigate Prior Diseases§1015 Investigate Subsequent Injuries

§1020 Effective Use of the Treating Physician§1021 The Role of the Treating Physician§1022 Query the Physician§1023 Physician’s Medical Report

Sample: Physician’s Report§1024 Physician’s Deposition

§1030 Proximate Cause§1031 Differentiate Old Injuries From New Injuries

§1031.1 Subsequent Injuries§1031.2 Subsequent Medical Negligence

§1032 Actions of the Defendant§1033 Types of Causation§1034 Prepare the Doctor for Proximate Cause§1035 Potential Cross-Examination of Plaintiff

§1040 Damages§1041 Medical Expenses

§1041.1 Future Medical Expenses

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§1042 Disability and Disfigurement§1043 Pain and Suffering§1044 Loss of Earnings§1045 Aggravation of Preexisting Conditions§1046 Loss of Consortium§1047 Loss of Enjoyment of Life§1048 Mitigation of Damages§1049 Apportionment of Damages

§1050 Negotiation Strategies§1051 Analyze the Evidence

Chapter 11: Proving Hedonic Damages

§1100 Hedonic Damages§1101 Development of the Concept§1102 Variation Among State Statutes

§1110 Categories of Personal Injury Damages§1120 The Landmark Case of Sherrod v. Berry

§1121 District Court Opinion§1122 Seventh Circuit Court of Appeals Affirmation§1123 Seventh Circuit Court En Banc Rehearing

§1130 Loss of Enjoyment of Life§1131 Supporting Case Law

§1140 Cost-Benefit Analysis§1141 Establishing the Value of Human Life

§1150 Loss of Enjoyment of Life vs. Pain and Suffering§1151 Proving Loss of Enjoyment of Life

§1160 Using an Economist to Determine Value of Life EstimatesSample: Direct Examination of EconomistSample: Cross-Examination of Economist§1161 Using Lay Witnesses to Supplement Economist’s Testimony

Table: Hedonic Damages in Personal Injury Cases

Chapter 12: Using Experts In Valuing and Settling Claims

§1200 Introduction§1201 Overview§1202 Deciding Whether to Use an Expert§1203 Facts and Information Upon Which Experts Rely§1204 Determining Whether an Expert Should Testify§1205 Styles of Expert Testimony

§1210 Experts as Consultants§1220 Selecting Experts

§1221 Introduction§1222 Referrals From Counsel§1223 The Professional Witness

F-15 (Rev. 19, 1/12)

TABLE OF CONTENTS

§1224 Contacting and Communicating With Expert Witnesses§1225 Checklist — Finding, Screening, and Using Experts

§1225.1 Checklist - Building an Effective “First Call” Agenda forProspective Expert Witnesses

§1226 Expert Retention Letter§1227 Selecting the Right Life Care Planner for Your Personal Injury Case

§1227.1 What Is a Life Care Planner§1227.2 When a Life Care Planner Is Needed§1227.3 Case Selection Checklist§1227.4 Role of Life Care Planner§1227.5 Cost§1227.6 References§1227.7 Current Caseload§1227.8 Professional Credentials, Background and Training§1227.9 Life Care Planner Selection Checklist§1227.10 Red Flags§1227.11 Conclusion§1227.12 Resources

§1230 Discovery of Expert Opinions§1231 Statutory Disclosure Requirements§1232 Expert Testimony§1233 Federal Rules of Evidence, Rules 702, 703, and 705§1234 Cross-Examining an Opponent’s Expert

§1240 Limitations on the Use of Experts§1241 Frye v. United States§1242 Daubert v. Merrell-Dow Pharmaceuticals, Inc.

§1242.1 Deposition of Outline for Opposing Expert – Daubert Issues§1243 The Lesson of Ofstedahl v. City of Phoenix

§1250 Ethical Considerations§1260 Expert Fees§1270 Expert Strategies

§1271 Should You Bring Your Expert Witness Live to Trial?§1272 When to Name Experts§1273 Connect With Experts§1274 Videotaping a Defense Medical Exam

Chapter 12A: Harnessing the Internet as a Claim Evaluation and Settlement Tool

§1200A Introduction§1210A [Reserved]§1220A Internet Resources

§1221A Search Engines§1222A Electronic Legal Research§1223A Listserves§1224A Web Sites§1225A Court Web Sites

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§1226A PACER and Electronic Court Filing§1227A Blogs

§1230A Specific Uses for the Internet as a Claim Evaluation and Settlement Tool§1231A Litigation Management and Support§1232A Networking§1233A Information Gathering§1234A Researching Expert Witnesses

§1234A.1 Identifying and Retaining Expert Witnesses§1234A.2 Neutralizing Hostile Experts

§1235A Evaluating and Mediating Claims Online§1236A Using E-Mail for Claim Negotiating

§1236A.1 Is E-Mail for Liars?§1236A.2 Use Subject Headings§1236A.3 Receipt and Read Verification on Claim-Related E-Mails

to Adjusters§1236A.4 Verifying Receipt of E-Mails

§1240A Speed Bumps on the Information Superhighway§1241A Security Issues§1242A Timeliness Concerns§1243A Computer Viruses§1244A The “Spam” Factor§1245A Defamation Risks

§1250A Social Networking and the Personal Injury Lawyer§1251A What Are Social Networks?§1252A Background on LinkedIn§1253A Practical Tips on Using LinkedIn to Develop Business§1254A Social Media as a Source of Business and Threat to Personal Injury Attorneys

Chapter 12B: Using Focus Groups and Mock Trials as Tools inPersonal Injury Claim Evaluation

§1200B Introduction§1210B The Difference Between Focus Groups and Mock Trials

§1211B In General§1212B Focus Groups§1213B Mock Trials§1214B Sequential Use

§1220B Advantages of Focus Groups and Mock Trials§1221B Force Advance Preparation§1222B Give Each Side Advance Peek at Other’s Arguments§1223B Preview Juror Reactions§1224B Provide Opportunity to Test and Fine-Tune Arguments and Themes§1225B Provide Opportunity to Test Efficacy of Evidence§1226B Provide Objective Valuation§1227B Calibrate Client Expectations§1228B Let Client See You Work

§1230B Disadvantages of Focus Groups and Mock Trials§1231B Cost

F-17 (Rev. 19, 1/12)

TABLE OF CONTENTS

§1232B Feedback May Be Unreliable§1233B Inability to Strike Mock Jurors§1234B Inability to Duplicate Sympathy Factor§1235B Time Constraints§1236B Other Difficulties With Mock Trials

§1240B Respective Roles of Vendor and Counsel in Mock Trials and Focus Groups§1241B Counsel’s Role§1242B Vendor’s Role

§1250B Tips for Doing it Right§1251B Whether to Recommend a Mock Trial or Focus Group§1252B Use Demonstrative Evidence§1253B Other Tips for Mock Trials

§1260B Caveats§1261B Small Venues§1262B Use of Results in Mediation§1263B Confidentiality

§1270B Selecting the Vendor§1271B Finding the Right Vendor§1272B Selected Vendors for Mock Trials and Focus Groups


Chapter 13: Determining Coverage and Obtaining Policy Limits

§1300 Establishing Coverage§1301 Discover Existing Policies

§1301.1 Lost Policies§1302 Intentional Torts

§1302.1 Is Defendant Covered?§1302.2 Avoiding the “Intentional” Exclusion§1302.3 “Intentional” or “Wrongful” Conduct?§1302.4 Intended Conduct that Is “Negligent”

§1303 Continuing Occurrences and Progressive Injuries§1303.1 Multiple Insurance Policies§1303.2 Trigger Issue — Identifying Implicated Policies§1303.3 Manifestation Theory’s Impact on Coverage§1303.4 Emerging Trend Toward Adoption of Multiple Trigger Theories§1303.5 Allocation of Costs Among Insurers§1303.6 Number of Occurrences in Multiple Injury Cases

§1304 Excess Insurance§1305 Know When Not to Demand Policy Limits§1306 Don’t Demand Policy Limits Unconditionally if Damages Exceed

Minimal Limits§1307 Documenting the Assets of the Defendant§1308 Communicate With Your Client and Obtain Consent to Settle§1309 Review Underinsured Motorist Coverage

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§1310 Obtaining the Tortfeasor’s Policy Limits§1311 Checklist for Settlement Demand§1312 Meeting With Adjuster§1313 Using Client’s Uninsured Motorist Policy When Coverage Is Excluded

Under the Tortfeasor’s Liability Policy as an “Intentional Act”§1320 Persuading the Insurance Carrier to Reveal Policy Limits

§1321 Reasons Why Insurance Carriers Don’t Usually Reveal Policy Limits§1322 Devices for Persuading Adjusters to Reveal Policy Limits

§1330 Coercing Stubborn Insurance Companies to Pay Policy Limits§1331 Law Regarding “Bad Faith” Actions

§1331.1 Insurer’s Duty of Good Faith§1331.2 Essential Prerequisites for Recovery of Bad Faith Damages§1331.3 Insurer’s Liability Above Coverage Limit§1331.4 Examples of Bad Faith§1331.5 “Bad Faith” in Denying That the Tortfeasor Is Uninsured

§1332 Defense Counsel’s Perspective in Preventing Bad Faith Exposure§1333 Coercive Devices for Obtaining Policy Limits§1334 Breaking the Stalemate With an Insurance Adjuster§1335 Combining Approaches§1336 Breaking the Stalemate With a Defense Attorney§1337 The Dynamics of Hammer Letters in Policy Limits Cases

§1337.1 What Is a Hammer Letter?§1337.2 Why Do Insureds Send Hammer Letters?§1337.3 What to Expect From the Insurance Adjuster§1337.4 Base Strategy on Probabilities

§1340 Coercing the Stubborn Underinsured Motorist Carrier to Approve a PolicyLimits Settlement

§1350 Policy Limits and Structured Settlements§1360 Checklist — Avoiding Malpractice Relating to Acceptance of Policy Limits§1370 The Carrier’s Duty to Provide Independent Counsel

§1371 Conflicts of Interest Requiring Independent Counsel§1372 Types of Conflicts Requiring Independent Counsel§1373 When Independent Counsel Not Required§1374 Duties of Independent Counsel§1375 Selection of Independent Counsel§1376 Payment of Independent Counsel§1377 Privileged Communications in Conflict of Interest Cases§1378 Duties of Counsel Selected by Insurer Where There Is a Conflict of Interest§1379 Duties of Counsel Selected by Insurer Where There Is no Conflict of Interest

§1380 Duties of Coverage Counsel§1381 Control of Litigation§1382 Insurer’s Reservation of Rights as to Reimbursement and Independent

Counsel Issues§1383 Obtaining Recovery of Pretender Fees§1384 Duty to Defend Only Suits

§1390 Duties Between Independent Counsel and Insurer-Selected Counsel

F-19 (Rev. 19, 1/12)

TABLE OF CONTENTS

Chapter 13A: Questions to Assess Coverage Problems

§1300A Introduction§1310A Common Coverage Defenses§1320A Insurer Ploys§1330A Dynamic Nature of Coverage Issues §1340A Avoid Malpractice Claims§1350A Checklist — Questions to Assess Coverage Problems§1360A Sample Reservation of Rights Letter §1370A Sample Non-Waiver Agreement§1380A Coverage Perils of Patient Apology Programs

§1381A Why Personal Injury Counsel Should Care§1382A Potential Insurance Coverage Pitfalls§1383A Usurping the Insurer’s Claim-Handling Role§1384A Potential Prejudice to the Insurer’s Claim Resolution Efforts§1385A Other Questions§1386A Agonizing Choices: Quick Resolution vs. Need for Methodical

Investigation§1387A Reconciling Apology Programs with Insurance Policy Compliance

Chapter 14: What to Do When Liability Is Denied

§1400 Introduction§1410 Determining Why the Claim Was Denied

§1411 Information Required From the Client§1412 Contacting the Agent§1413 Writing the Insurance Company to Obtain Information

§1420 Assessing the Potential Claim§1421 Breach of Contract

Checklist: Elements of Breach of Contract§1422 Bad Faith

Checklist: Elements of Bad Faith§1423 Fraud§1424 Negligence§1425 Unfair Business Practices

§1430 Pre-Suit Investigation§1431 Insurance Department Records§1432 Government and Court Records

§1440 Discovery§1441 Interrogatories

§1441.1 Contentions§1442 Request for Production and Subpoena of Insurance Files and Documents

§1442.1 The Internal Claims File§1442.2 Agent’s File§1442.3 Underwriting File§1442.4 Training and Marketing Materials

F-20


§1442.5 Bonus Programs§1442.6 Complaint Records

§1443 Depositions§1443.1 Agent§1443.2 Claims Personnel§1443.3 “No-Lose” Questions§1443.4 Deposition Outline — Defense Medical Expert§1443.5 Examination Techniques — Defense Medical Expert

§1444 Requests for Admission§1450 Trial Strategy

§1451 Voir Dire§1451.1 Checklist — Voir Dire§1451.2 Examination Techniques

§1452 Opening Statement§1453 Order of Witnesses§1454 Closing Argument

Chapter 14A: Homeowner’s Insurance Coverage for Mold Claims

§1400A Introduction§1410A How Mold Problems Arise§1420A Why Are Mold Claims So Prevalent Now?§1430A The Ballard Case§1440A Extent of Problem§1450A Possible Causes of Action and Defendants

§1451A First Party Claims§1452A Third Party Claims

§1460A Proving Causation§1470A Typical Damages§1480A Jackpot Recoveries§1490A Determining What Policies Are Triggered by Mold Claim§14100A Policy Exclusions

§14101A Coverage Avenues in Spite of Exclusions§14110A Coverage Caps§14120A Indemnity§14130A Attorney Fees§14140A Notice Issues

§14141A Form: Notice Letter to Insurer§14150A Time Limitations on Actions§14160A Insurance Agent’s Role in Mold Claims Process§14170A Sample Verdicts §14180A Resources

F-21 (Rev. 19, 1/12)

TABLE OF CONTENTS


Chapter 15: Drafting Effective Demand Letters and Settlement Brochures

§1500 Introduction§1501 Is This a Case You Really Want?§1502 Determining Liability and Causation§1503 The “P.I. Five”

§1503.1 Liability§1503.2 Damages§1503.3 Defendant With Ability to Pay§1503.4 The Good Plaintiff§1503.5 The Bad Defendant

§1510 Working With Adjusters§1511 Initial Contact With the Adjuster§1512 What the Carrier Has That You Don’t

§1520 What About Your Fee?§1530 What You Need to Have in Your File

§1531 Client Diary§1532 “Independent Medical Examination”§1533 Checklist: What You Need to Have in Your File§1534 Demonstrative Evidence

§1540 When Do You Address Settlement?§1541 Should You Settle Pre-Suit?§1542 Organizing Your Records and Your Thoughts§1543 Preparing a Settlement Brochure§1544 Video Settlement Brochure

§1550 Where to Start and What to Say§1551 Family Background§1552 Prior Medical History§1553 Facts of the Accident

§1553.1 Facts Outline — Slip and Fall Case§1553.2 Facts Outline — Products Liability Case§1553.3 Facts Outline — Premises Liability Case

§1554 Injuries§1555 Special Damages and Disability§1556 Pain and Suffering§1557 Exhibits§1558 Legal Evaluation§1559 Consideration of an Excess Verdict

§1560 How Much Is Enough?§1561 Plaintiff’s Credibility§1562 Using a Mock Jury

§1570 The Demand Closing

F-22


§1580 Tips for Improving Settlement Brochures and Demands§1581 Personalize Your Client§1582 Organize Medical Records§1583 Make the Written Product User-Friendly§1584 Acknowledge Soft Spots§1585 Sweat the Details§1586 Allow Adjuster Reasonable Lead Time

§1590 What If It Doesn’t Settle?§1591 Alternate Dispute Resolution in the 21st Century

§1591.1 Examples of Successful Alternate Dispute Resolutions§1592 Forms of Alternate Dispute Resolution

§1592.1 Mediation§1592.2 Checklist for Mediation Preparation§1592.3 Arbitration§1592.4 Checklist for Arbitration Proceedings§1592.5 High/Low Arbitration§1592.6 Mini Trials§1592.7 Third Party Neutral Evaluation

Chapter 16: What Adjusters Need to Settle Claims

§1600 In General§1610 How a Claims Index Works

§1611 Technology in the Nineties§1612 How the Adjuster Uses the Index Information

§1620 Narrative Summary About Your Client§1621 Using the Narrative Summary to Favorably Influence the Adjuster

§1630 Public Agency Reports§1640 Dealing With the Client’s Medical Bills

§1641 The Right Way to Provide the Client’s Bills to the Adjuster§1642 The Best Way to Explain the Client’s Bills to the Insurance Adjuster

§1650 Obtaining Your Client’s Complete Wage Records§1651 Ways to Handle Negative Information from Your Client’s Employer

§1660 Dealing With Medical Records§1661 Narrative Report Comparing Medical Records§1662 How to Avoid Unpleasant Surprises

§1670 Narrative Summary of Expected Future Expenses§1671 Narrative Summary of Expected Future Medical Treatments

§1680 Statement of Exact Amount of Claim

Chapter 17: Chiropractic Treatment in Soft Tissue Injury Cases

§1700 Introduction§1710 The Effectiveness of Chiropractic Treatment

§1711 Practice Pointer

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TABLE OF CONTENTS

§1720 The Law Governing the Scope of Chiropractic Treatment§1721 Practice Pointer

§1730 The Chiropractor’s Education§1731 Practice Pointer

§1740 The Chiropractor’s Professional Study§1741 Practice Pointer

§1750 Levels of Chiropractic Care§1760 Chiropractic Problem Areas and How to Deal With Them

§1761 Request That Chiropractor Reduce Bill§1770 Sample Direct Examination of a Treating Chiropractor in a Soft Tissue Injury Case

Chapter 18: Attorneys’ Guide to Medical Records

§1800 Introduction§1801 Obtaining Medical Records§1802 Determining if the Record Is Complete

§1802.1 Components of Hospital Records§1802.2 Components of Doctor’s Office Records

§1810 Hospital Admission Records§1811 Hospital Admission Sheet§1812 General Consent to Treatment§1813 Assignment of Insurance Benefits

§1813.1 Checklist: Questions for Defense-Appointed Physician§1820 Doctors’ and Nurses’ Admission Histories and Examinations

§1821 Components of Medical, Family, and Social Histories§1822 Physical Examination§1823 Dealing With Defense-Oriented Doctors§1824 Nurse’s Assessment

§1830 Doctors’ Progress Notes and Nurses’ Daily Notes§1831 The S.O.A.P. Method§1832 What Progress Notes Should Include§1833 What Daily Notes Should Include

§1840 Surgery and Special Procedure Records§1841 Special Procedure Consent Forms§1842 Surgery or Special Procedure Reports§1843 Anesthesia Records§1844 Operating Room Nursing Notes§1845 Recovery Room Records§1846 Intensive Care Unit Records

§1850 Other Components of Hospital Records§1851 Emergency Room Records§1852 Graph of Vital Signs§1853 Medication and Intake and Output Records§1854 Doctor’s Orders and Consultation Reports§1855 Electronic Fetal Monitor Record§1856 Therapy Records

F-24


§1857 Department Studies§1857.1 Radiology Department Studies§1857.2 Laboratory Studies

§1858 Autopsy Report§1859 Incident Report

§1860 Doctors’ and Nurses’ Discharge Summaries§1870 Medical Records Status Report and Activity Log§1880 Analysis of Medical Records

§1881 Perform Chronological Analysis§1882 Case Scenarios Demonstrating the Importance of Medical Records

§1890 The Essential Medical Bookshelf for Personal Injury Practitioners§1891 Introduction§1892 The Essential Texts and Software

Chapter 18A: Countering Defense Independent MedicalExaminations

§1800A Introduction§1810A Exam Process

§1811A Scheduling Exam§1812A Warning Signs§1813A Candor Pays Off§1814A Client Preparation§1815A Client Tips on Meeting Doctor§1816A Physical Exam§1817A Client Should Track Exam Time

§1820A After Exam§1830A How to Exploit Common Mistakes in IME’s§1840A Doctor “Irrationally Biased” Against Claimant§1850A Bad Faith Claims

Chapter 19: Common Mistakes Made by Plaintiffs’ Attorneysin Documenting Claims

§1900 Introduction§1901 The Players

§1901.1 The Plaintiffs’ Attorney§1901.2 The Defense Interest§1901.3 The Client§1901.4 The Trier of Fact

§1902 The Hypothetical Incident§1910 Mistake Number 1: Failing to Know Specifically What You Need to Document

§1910.1 Overview§1910.2 Checklists of Needed Documents

§1911 The Client Questionnaire

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TABLE OF CONTENTS

§1912 Initial Client Conference§1912.1 Use the Client Questionnaire§1912.2 The Importance of Honesty§1912.3 Discussing the Litigation Process§1912.4 Note Taking§1912.5 Attorney Fees§1912.6 Closing the Initial Conference

§1913 Initial Case Evaluation and Investigation§1914 Accepting or Rejecting the Case

§1914.1 Accepting the Case§1914.2 Rejecting the Case§1914.3 Inform Others of Your Representation

§1915 Written Correspondence§1916 Telephone Conversations§1917 Pleadings§1918 Discovery§1919 Litigation Costs

§1920 Mistake Number 2: Failing to Prove Liability and Damages§1920.1 Legal Research

§1921 Documents Evidencing Liability§1921.1 Photographs§1921.2 Accident Report§1921.3 Witness Statements§1921.4 Repair Estimates§1921.5 Miscellaneous Public Records§1921.6 Medical Records§1921.7 Expert Witness Reports§1921.8 Physical Evidence§1921.9 Demonstrative Evidence

§1922 Documents Evidencing Damages§1922.1 Noneconomic Damages§1922.2 Pain and Suffering§1922.3 Hedonic Damages: Loss of Enjoyment of Life§1922.4 Emotional Distress§1922.5 Loss of Self Worth§1922.6 Disfigurement§1922.7 Plaintiff’s Diary§1922.8 Photographs§1922.9 Day-in-the-Life Videos§1922.10 Recorded Statements

§1923 Economic Damages§1923.1 Medical Expenses§1923.2 Future Medical Expenses§1923.3 Loss of Earnings and Future Earnings Capacity§1923.4 Disability§1923.5 Rehabilitation

F-26


§1923.6 Property Damage§1923.7 Loss of Use of Property

§1924 Dealing With Preexisting Conditions§1925 Punitive or Exemplary Damages§1926 Loss of Consortium§1927 Wrongful Death§1928 Documents Pertaining to Recovery§1929 Documents Confirming Settlement Authority

§1930 Mistake Number 3: Failing to Obtain the Documents You Need§1931 Informal Discovery

§1931.1 Preliminary Investigation§1931.2 Books and Journals§1931.3 Investigation by Plaintiff§1931.4 Medical Record Releases§1931.5 Employment Record Releases§1931.6 Public Records§1931.7 Expert Consultants and Witnesses§1931.8 Informal Request to the Defense

§1932 Formal Discovery§1932.1 Interrogatories§1932.2 Demands for Production§1932.3 Subpoenas§1932.4 Requests for Admissions§1932.5 Depositions§1932.6 Your Client’s Deposition

§1940 Mistake Number 4: Failing to Analyze the Documents§1941 Critical Review of Documentation: Case Weaknesses

§1941.1 First Review Documents From a Worst Case Perspective§1941.2 Dealing With Case Weaknesses§1941.3 Preexisting Injuries

§1942 Dealing With Case Strengths§1943 Understanding the Documents

§1943.1 Plaintiff’s Assistance§1943.2 Assistance of Other Attorneys§1943.3 Expert Consultants§1943.4 Professional Literature§1943.5 Health Care Providers

§1944 Summarizing the DocumentsSample: Medical History Summary

§1950 Mistake Number 5: Failing to Organize the Documents§1951 Organizing the Documents

§1951.1 Pleading File§1951.2 Discovery File§1951.3 Evidence File§1951.4 Correspondence File§1951.5 Legal Research File§1951.6 Summaries File

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TABLE OF CONTENTS

§1952 Indexing the Files§1953 Summarizing the Documents§1954 Trial Notebook

§1960 Mistake Number 6: Failing to Effectively Utilize the Documents§1961 Consider the Interests of All Parties§1962 Evaluating Your Case Realistically

§1962.1 Evaluation Checklists§1962.2 Liability Analysis§1962.3 Damage Analysis§1962.4 Total Evaluation

§1963 Using Documentation to Settle the Claim§1963.1 Demand Checklist§1963.2 The Demand Letter§1963.3 The Settlement Brochure§1963.4 Periodically Reevaluate the Case

§1964 Using Documents at Settlement Conferences and Arbitration or MediationHearings

§1965 Using Documents at Trial§1970 Mistake Number 7: Failing to Maintain Documents After the Case Is Resolved

Chapter 20: Analyzing Opinion Letters:A Physician’s Insights on the Quality of Medical Reports

§2000 Medical Evaluations in Litigation§2001 Introduction§2002 The Problem of the Reluctant Physician§2003 Do I Need an Expert Report?§2004 Types of Reports§2005 Records Review§2006 Litigation v. Treatment Reports§2007 Biased Medical Reports§2008 Use of Medical Reports in Litigation§2009 The Report Itself

§2010 The Doctor and Patient Relationship§2011 Limiting the Relationship§2012 Confidentiality

§2020 Creating Medical Reports§2021 Duties of Medical Reporter§2022 Medical Records§2023 Documents Not Part of the Medical Records§2024 Preparation of Medical Reports§2025 Reference Sources in Medical Reports

§2030 Evaluating Patients§2031 Patient Interview§2032 Objective Observations§2033 Malingering, Hysteria and Accident Neurosis

F-28


§2034 Findings Suggesting Exaggeration§2035 American Medical Association Guidelines§2036 Permanent Disability Rating§2037 Apportionment of Injury to Incident

§2040 Descriptive Words for Subjective Factors§2041 Pain and Suffering Reports§2042 Levels of Pain§2043 Frequency of Pain

§2050 Specific Diagnostic Testing§2050.1 History and Physical Examination§2050.2 Diagnostic Tests In General§2050.3 Tests Performed on Patient§2050.4 Pulmonary Function Tests§2050.5 Compartment Pressure (Wick)§2050.6 Electromyography§2050.7 Other Electrophysiological Diagnostic Studies§2050.8 Anatomical Pathology§2050.9 Genetic Testing§2050.10 Diagnostic Instruments§2050.11 Arthroscope§2050.12 Arteriography, Venography, and Lyphangiography§2050.13 Magnetic Resonant Arteriograph§2050.14 Clinical Laboratory Testing

§2050.14.1 Chemical Laboratories§2050.14.2 Hematological Studies§2050.14.3 Microbiology§2050.14.4 Immunohematology

§2050.15 Pregnancy Testing§2050.16 HIV-AIDS§2050.17 Radiological Testing

§2050.17.1 X-Ray Imaging§2050.17.2 Mammography§2050.17.3 Fluoroscopy§2050.17.4 Myleography

§2050.18 Computerized Tomography (CT Scans)§2050.19 Ultrasound§2050.20 Magnetic Resonance Imaging (MRI)§2050.21 Other Imaging Techniques

§2050.21.1 Nuclear Medicine§2050.21.2 Single Positron Emission (PET)§2050.21.3 Single Photon Emission Computed Tomography

(SPECT)§2050.21.4 Interventional Radiology§2050.21.5 Discograms§2050.21.6 Scintography

F-29 (Rev. 18, 12/10)

TABLE OF CONTENTS

§2050.22 Performance Testing§2050.23 Thermography

§2051 Elements of Orthopedic Evaluations§2051.1 History§2051.2 Physical Examination

§2052 Psychiatric Consultation Reports§2053 Forensic Psychiatric Reports§2054 Psychiatric Evaluation Reporting Styles§2055 Workers’ Compensation Reports§2056 Disability Reports§2057 Head Injury Reports§2058 Child and Elder Abuse Reports


Chapter 21: Negotiating Insurance Claims

§2100 Preparing for Insurance Claim Negotiations: Do Your Homework§2101 Know With Whom You Will Be Negotiating

§2101.1 The Case for Adjusters Handling Claim Negotiations§2101.2 Arguments for Having Defense Counsel Handle Settlement

Negotiations§2101.3 Why Policyholders and Insurers Want Pre-Suit Counsel§2101.4 Adjuster Reservations§2101.5 Smelling a Boondoggle?

§2102 Get the Background on Opposing Counsel§2103 Get the Background on the Insurance Company§2104 Get the Background on the Client

§2110 The Four “8’s” — Investigate, Orchestrate, Evaluate, and Negotiate§2111 Investigate

§2111.1 One Picture Is Worth a Thousand Words§2111.2 Importance of Personal Attention

§2112 Orchestrate§2112.1 Timing§2112.2 Credibility§2112.3 Required Medical Personnel§2112.4 Expert Witnesses Needed§2112.5 Build Your File

§2112.5.1 Medical Reports§2112.5.2 “Day in the Life” Videotape§2112.5.3 Client Tape Recording§2112.5.4 Client Bodily Injury (B/I) Packet

§2113 Evaluate§2113.1 Set Parameters§2113.2 Be Optimistic, But Realistic

F-30


§2113.3 Consider All Damages§2113.4 Use Tools

§2113.4.1 Pain Chart§2113.4.2 Evaluation Sheet§2113.4.3 Reserve/Demand Letter

§2114 Negotiate§2114.1 Timing Factors in Negotiating Personal Injury Claims§2114.2 Goodbye Wheel-Spinning: Rx for Efficient Negotiating§2114.3 Be a Person First, Then an Attorney

§2114.3.1 Know Your Strengths§2114.3.2 Know the Adjuster§2114.3.3 Know the Company§2114.3.4 Communicate Regularly§2114.3.5 Address Weak Areas in the Case

§2114.4 Starting the Negotiating Process§2114.4.1 Read About Negotiating§2114.4.2 Develop Writing Skills§2114.4.3 Learn to Listen§2114.4.4 Determine Realistic Goals§2114.4.5 Negotiate for Money, Information, and More

§2114.5 Countering the Insurance Adjuster’s “Statistical Insignificance”Defense§2114.5.1 The 99.9% Fallacy§2114.5.2 Put the Adjuster in the Juror’s Shoes§2114.5.3 Takeaways for Personal Injury Counsel

§2120 Avoiding the Fifth “8”: Litigate§2121 Fairness of the Adjuster vs. a Jury§2122 Reputation as a Trial Lawyer Enhances Success as a Litigator

§2130 “Hot Buttons”: How to Squeeze that Extra Buck§2131 Use the Adjuster’s Name Frequently§2132 Personalize§2133 Key Words

§2133.1 Words and Phrases to Avoid When Negotiating With Insurance Claim Adjusters

§2134 Kickers§2140 Bibliography on Negotiation

Chapter 22: Establishing Bad Faith

§2200 Introduction§2210 Substantive Law Regarding First and Third Party Bad Faith

§2211 Basics of First Party Bad Faith Actions§2212 Relevant Statutes§2213 Basics of Third Party Bad Faith Actions§2214 ERISA Considerations§2215 Comparative Bad Faith

F-31 (Rev. 18, 12/10)

TABLE OF CONTENTS

§2220 Spotting Bad Faith Conduct§2221 General Points

§2221.1 The Basic Tests§2221.2 Insurer’s Past Practices

§2222 Theories of Recovery and Remedies§2222.1 Checklists of Possible Theories and Remedies§2222.2 Intentional Infliction of Emotional Distress

§2223 Specific Bad Faith Practices§2223.1 Failure to Settle Within Policy Limits§2223.2 Refusal to Defend or Indemnify§2223.3 Improper Investigation and Evaluation of Claims§2223.4 Setting Inadequate Reserves§2223.5 Designing, Advertising, & Selling Insurance Policies§2223.6 Conflict of Interest§2223.7 Inadequate Defense

§2224 Bad Faith Implications of Adjuster Pay Plans§2224.1 The Myth of Adjuster Bonus Plans§2224.2 The Reality of Incentive Compensation§2224.3 Rationale for Pay Schemes§2224.4 Incentive Pay Plans May Invite Bad Faith§2224.5 Incentive Pay Plans as Risk Management Liabilities§2224.6 Recipe for Bad Faith§2224.7 Alternative Approaches§2224.8 Case Study§2224.9 Deposition Outline for the Claims Adjuster

§2230 Presuit Negotiation and Informal Discovery Considerations§2240 Discovery

§2241 Plaintiff§2241.1 Areas of Inquiry§2241.2 Documents§2241.3 Depositions

§2242 Defendant§2242.1 Venue§2242.2 Plaintiff’s Complaint§2242.3 Areas of Inquiry§2242.4 [Reserved]§2242.5 [Reserved]§2242.6 Discovery of Company Wealth§2242.7 Information Available on the Internet

§2250 Trial§2251 Motions in Limine§2252 Voir Dire§2253 Opening Statement§2254 Plaintiff’s Case in Chief§2255 Defendant’s Case§2256 Expert Witnesses§2257 Closing Argument

F-32


Chapter 23: How to Negotiate With Insurance Companiesand Avoid Settlement Delays

§2300 Successful Negotiations: Five Places to BeginChecklist: How to Make a Successful Initial Contact With Adjusters

§2310 Be Careful of Terms When Beginning Negotiations§2310.1 The Preferred Risk Policyholders§2310.2 The Nonstandard Policyholders§2310.3 The “Surplus Lines” Insurance Coverage§2310.4 The Attitude of the Self-Insured Policyholder§2310.5 The Effects of Being an Admitted or Nonadmitted Carrier

§2311 Comparing Adjuster Attitudes§2320 Attitude Adjustments

§2321 Determining Fault FactorsChecklist: “Sizing up” Adjusters

§2322 Dealing With Multiple Adjusters§2330 Complaints of Adjusters

Checklist: Documentation to Support Your Claim§2340 How to Avoid Settlement Delays

Checklist: Avoiding Settlement Delays§2350 When to Make a Recommendation for Settlement

§2351 Four Fatal Settlement Errors to Avoid§2360 Settlement Demand

§2361 How to Handle the Insurance Company’s Counteroffer§2370 Compromise Demand

§2371 Reducing Your Own Demand§2380 What to Do When Negotiations Break Down

§2380.1 Four Possible Solutions§2381 List Offers and Compromises in Writing§2382 Game Playing and Other Trivial Pursuits§2383 Face-to-Face Settlement Conference

Chapter 24: Maximizing Damages in Small Personal Injury Cases

§2400 Small Claims Challenges §2401 The Request for a Recorded Statement in Third Party Claims§2402 The Request for a Recorded Statement in First Party (Uninsured or

Underinsured) Party Claims§2410 Typical Injuries and Elements of Damages

§2411 Headache Pain§2412 Sleeping Problems§2413 Mental and Emotional Damages§2414 Cosmetic Compensation §2415 Loss of Consortium§2416 Overall Quality of Life§2417 Hired Help

F-33 (Rev. 18, 12/10)

TABLE OF CONTENTS

§2418 Nursing Services§2419 Travel Expenses

§2420 Past, Current, and Future Complaints§2421 Disability and Impairment

§2421.1 Minor Clients’ Disabilities§2421.2 Elderly Clients’ Disabilities

§2422 Prior Injuries§2423 Subsequent Injuries§2424 Future Medical Costs

§2430 Wage Loss§2431 Loss of Earnings§2432 Proving the Self-Employed Client’s Wage Loss§2433 Secondary Sources of Income and Lost Opportunities§2434 Unemployed Client’s Wage Loss

§2440 Property Damage§2441 Vehicle Damage§2442 Vehicle Loss of Use§2443 Other Property Damages

§2450 Habitual Dilemmas in Routine Negotiations§2451 General Recommendations for Effective Negotiations

§2451.1 Distinguishing Significant Injuries§2451.2 Portraying Your Client Favorably§2451.3 Soothing the Adjuster’s Concerns§2451.4 Dealing with Colossus or Other Computer Programs Insurance

Companies Use to Determine Value§2452 Delays in Seeking Treatment§2453 Living With the Facts of Life (Your Client’s, That Is)§2454 Claimant’s Admissions§2455 Multiple Clients, Same Adjuster§2456 Settling the Unsettleable Claim§2457 Comparative Negligence Set-Offs§2458 Formula Settlements§2459 Structured Settlements

§2460 Negotiation 101§2461 Prepare for Negotiations§2462 Break Down Harms§2463 Appear Reasonable§2464 Build a Relationship With the Adjuster

§2470 Resorting to Litigation

Chapter 25: Twenty-Six Tips From Seasoned Claims Adjusters

§2500 Introduction§2501 How We Got Here§2502 Adjusters Are People Too

F-34


§2510 The Twenty-Six Tips§2511 Twelve DOs

§2511.1 Be a True Professional§2511.2 Be Courteous§2511.3 Be Prepared§2511.4 Be Objective§2511.5 Be Realistic§2511.6 Listen§2511.7 Be Assertive§2511.8 Use Interim Agreements to Move Toward Settlement§2511.9 Separate Methods From Substance§2511.10 Be Principled§2511.11 Get Settlement Authority in Writing§2511.12 Get Settlement in Writing

§2512 Fourteen DON’Ts§2512.1 Don’t Depend Upon Sham Values or Issues§2512.2 Don’t Lose Your Temper§2512.3 Don’t Belittle Your Strengths§2512.4 Don’t Lose Professional Distance§2512.5 Don’t Ignore Newly Learned Information§2512.6 Don’t Attack a Person Instead of an Idea§2512.7 Don’t Spill Your Bottom Line§2512.8 Don’t Undo a Done Deal§2512.9 Don’t Ignore the Other Person§2512.10 Don’t Cheat§2512.11 Don’t Draw Arbitrary Lines in the Sand§2512.12 Don’t Bid Against Yourself§2512.13 Don’t Go “Off the Record”§2512.14 Don’t Allow Yourself to Be Exploited

§2520 Conclusion

Chapter 25A: Mediation Tips for Personal Injury Counsel§2500A Introduction§2510A Mediation Success Tips

§2511A Expect More of a Marathon Than a Sprint§2512A “Anchor” the Opposing Side’s Expectations§2513A [Reserved]§2514A Select the Mediator Wisely§2515A Weigh Timing Factors§2516A Be Creative§2517A Plan and Train§2518A Prep Yourself Physically§2519A Prep the Client

F-35 (Rev. 18, 12/10)

TABLE OF CONTENTS

§2520A Mediation Mistakes§2521A Throwing in the Towel Too Soon§2522A Assuming You Know What the Other Side Wants§2523A “Tit for Tat” Negotiating Ploys§2524A Tactless or Inflammatory Opening Statements§2525A Coming to the Mediation After Trying Too Hard to Settle the Case

§2530A Adjuster Perspective on Court-Ordered Mediation


Chapter 26: Evaluating Settlement Offers

§2600 Introduction§2601 The Art of Settlement§2602 Hypothetical Fact Situation

§2610 The “Big Three” Factors Affecting Case Value§2611 Liability§2612 Damages

§2612.1 Medical Expenses§2612.2 Lost Wages§2612.3 General Damages§2612.4 Checklist for Evaluating Damages

§2613 Proceeds§2613.1 Policy Limits and Reserves§2613.2 Assets of Defendant§2613.3 Other Sources

§2620 Other Factors Affecting Value§2621 Evaluating Bodily Injuries

§2621.1 Medical Reports§2621.2 Preexisting Conditions§2621.3 Prognosis

Sample: Checklist to Evaluate Pain and Suffering§2622 Type of Accident

Chart: Probability of Million Dollar Verdicts§2623 [Reserved]§2624 [Reserved]§2625 [Reserved]§2626 Timing of Settlement§2627 Expenses of Litigation§2628 Bad Faith§2629 lntangibles

§2630 [Reserved]§2640 Using Mathematical Formulas to Evaluate Claims

§2641 Range of Values§2641.1 Settlement Strategy Using Range of Values

F-36


§2642 [Reserved]§2643 Point Allocation System

Sample: Case Evaluation§2644 Jury Verdict Research Evaluations§2645 Computerized Applications§2646 Small Claims Court

Chapter 26A: Settlement Ethics§2600A Introduction§2610A Typical Ethical Dilemmas and Risks Associated With Settlements§2620A Failure to Disclose and Misleading Client

§2621A Failure to Convey a Settlement Offer to Client§2622A Failure to Disclose an Adverse Interest in a Settlement or Potential Settlement§2623A Promises of Quick Settlement in Attorney Advertising

§2630A Problem Settlements§2631A The “Package Deal” Settlement Offer§2632A Minor vs. Adult Variation of the Package Deal§2633A “Backlash” Settlements§2634A Ethical Propriety of Attorney Signing Settlement Documents

§2640A Attorney Fee Dilemmas§2641A Legitimacy of Attorney Fee§2642A Attorney Fees and Structured Settlements

§2650A Improper Handling of Funds§2651A Pre-Settlement Funding of Client’s Personal Expenses§2652A Innocent Misdepositing of Settlement Funds§2653A Not Properly Honoring a Lien From Settlement Funds§2654A Settlement Funds Disbursed Too Quickly

Chapter 27: Structured Settlements: Opportunities, Problems and Benefits

§2700 Introduction§2701 Definition

§2701.1 The Qualified Funding Asset§2702 The General Process

§2702.1 The Cash Settlement§2702.2 The Structured Settlement§2702.3 How They Compare§2702.4 Summary

§2703 Considerations in Structuring Settlements and Picking a StructuredSettlement Broker§2703.1 Introduction§2703.2 Use§2703.3 Benefits§2703.4 Identifying Candidate Cases for Structures

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TABLE OF CONTENTS

§2703.5 Barriers to Structuring Personal Injury Settlements§2703.6 Firms§2703.7 Insurer or Defense Counsel Usually Retains the Broker§2703.8 Does Claimant’s Attorney Need to Retain a Broker When

Insurer Has Already Retained One?§2703.9 Factors in Evaluating Brokers§2703.10 Conclusion

§2710 Documents§2711 Settlement Agreement and Release§2712 Qualified Assignments

Sample: Two-Party Qualified Assignment FormSample: Three-Party Qualified Assignment Form

§2713 Annuity PolicySample: Annuity Contract

§2720 Financial Security§2721 The Life Company§2722 The Casualty Company§2723 The Assignee

§2723.1 Secured Creditor Status§2724 State Guarantee Associations

§2730 Tax Issues§2731 Internal Revenue Code§2732 Constructive Receipt

§2732.1 The Settlement Documents§2732.2 The Payment Plan§2732.3 The Negotiation Process

§2733 Estate and Inheritance Taxes§2734 Preservation of Entitlements — Special Needs Trust

§2740 Payee/Contingent Payee Wording§2741 Common Incorrect Payee Designations§2742 Preferred Payee Designations

§2750 Attorneys’ Fees§2751 Contingent Fee Contract§2752 How to Determine Attorneys’ Fees§2753 When the Fees Are Paid§2754 Deferring Fees§2755 Constructive Receipt by the Attorney

§2760 Standard vs. Non-Standard Claimant§2761 Potential Value of a “Rate-Up”§2762 Claim-Related vs. Preexisting Condition

§2770 Use of Trusts§2780 Putting It All Together

§2781 How to Identify Candidate Cases for Structured Settlement§2781.1 Motivation to Use a Structured Settlement§2781.2 Explanation for the Claimant

F-38


§2782 How to Design a Settlement Payment Schedule§2782.1 Claimant’s Planning Worksheet§2782.2 Strategy for the Non-Standard Claimant

§2783 How to Valuate Different Alternatives§2783.1 Evaluating a Structured Settlement Offer§2783.2 Inherent Attorney-Client Tension

§2784 How to Negotiate a Structured Settlement§2784.1 The Environment§2784.2 Using Consulting Services, Financial Planners and Tax

Practitioners§2784.3 The Claimant’s Involvement§2784.4 Cash vs. Structured Format§2784.5 Initiating a Structured Settlement Offer

§2785 How to Tie It Together Into a Neat Closing§2785.1 Checklist for the Attorney§2785.2 Explanation of the Final Mechanics for the Claimant

§2790 Related Uses§2791 Workers’ Compensation§2792 Periodic Payment of Judgments§2793 Hazardous Waste Claims

Chapter 28: Appraisal of Insurance Claims

§2800 BackgroundSample: Appraisal Clause

§2810 Scope of Appraisal Proceedings§2811 Determination of Loss§2812 Appraisal and Arbitration Distinguished§2813 The Role of the Mortgagee

§2820 Avoiding the Appraisal Process§2821 Bad Faith§2822 Waiver or Loss of Right

§2830 Beginning the Appraisal Process§2831 Identify Dispute§2832 Timing§2833 Proof of Loss

§2840 Selection of Appraisers§2841 Choosing Your Appraiser§2842 Objecting to the Other Party’s Appraiser

§2850 The Appraisers’ First Decision: Selecting the Umpire§2851 Role of the Umpire§2852 Appointment by Appraisers§2853 Appointment by Petition to the Court

§2860 The Appraisal Proceedings§2861 Appraising the Loss

Sample: List of Appraiser Items for Umpire Review

F-39 (Rev. 18, 12/10)

TABLE OF CONTENTS

§2862 The Appraisal Hearing§2863 The Deliberations§2864 Setting Aside the Appraisal Award§2865 Paying the Umpire and Appraisers

Chapter 29: Solving Common Settlement Problems

§2900 In General§2910 The First Encounter

§2911 Set the Right Tone From the Beginning§2912 The Adjuster Is Not the Enemy

§2920 Attorney’s Level of Insurance Knowledge§2921 Prepare Your Case in Advance — Do Your Homework§2922 Don’t Make the Adjuster Do Your Work§2923 What You Don’t Know Can Hurt Your Case

§2930 Adjuster’s Level of Legal Knowledge§2931 Don’t Underestimate the Adjuster§2932 Educate the Adjuster as a Cooperative Gesture

§2940 Negotiation Roadblocks§2941 Keep Egos Out of the Equation§2942 Clearly Communicate Your Goals§2943 Follow the Chain of Command

§2950 Presenting the Demand§2951 Create a Straightforward Demand§2952 The Demand Is Only a Request

§2960 Establishing the Value of the Claim§2961 Base Your Figures in Reality§2962 Examine and Understand Local Practices§2963 Consider the Economic Picture

§2970 Filing the Lawsuit§2971 Preserve the Client’s Interests§2972 Consider the Timing

Chapter 29A: Handling Inflated and Other Liens

§2900A Negotiating With Lienholders§2910A Make a Record of All Liens§2920A How to Handle Disputed Funds §2930A Hospital Liens§2940A Medicaid Liens: What Can Lawyers Do About Them?§2950A Medicare§2960A Medical Indigent Programs§2970A Workers’ Compensation Liens

F-40



Chapter 30: Evaluation of Soft Tissue Injuries

§3000 Introduction§3001 Definition of a Soft Tissue Injury§3002 How a Soft Tissue Injury Occurs

§3002.1 Soft Tissue Pathology and Impairment§3010 Evaluating Soft Tissue Injuries With Medical Histories and Physical

Examinations§3011 Obtaining the Medical History§3012 Assessing the Extent of the Injury

§3020 Preexisting Injuries and Conditions§3030 Effects of Soft Tissue Injuries on Other Systems and Organs

§3031 Muscle§3031.1 Muscle Tissue Defined§3031.2 Structure and Function§3031.3 Motor Units§3031.4 Mechanics§3031.5 Actions§3031.6 Classifications§3031.7 Supplementary Structures

§3031.7.1 Retinacula§3031.7.2 Sheaths§3031.7.3 Synovial Bursae§3031.7.4 Synovial Sheaths

§3031.8 Muscle Pain Defined§3031.9 Fibromyalgia and Fibrositis§3031.10 Why Muscles Hurt — Myofascial Pain Syndrome§3031.11 Less Obvious Causes of Muscle Pain§3031.12 Myofascial Pain§3031.13 Medico-Legal Aspects of Fibromyalgia, Myofascial and

Repetitive Strain Disorders§3031.13.1 Compartment Syndromes

§3031.14 Evaluating Chronic Muscle Pain§3031.15 Stress and Muscle Pain§3031.16 Pain Defined

§3031.16.1 Sensory Mechanisms§3031.16.2 Chronic Pain§3031.16.3 Biochemistry of Muscle Injury§3031.16.4 Spinal Cord Pathways

§3032 NervesChecklist: Occurrence, Diagnosis and Causal Effects of Nerve Injuries§3032.1 Compression Neuropathies§3032.2 Nerve Injury After Knee Arthroscopy§3032.3 Susceptibility of Nerves to Pressure Injury§3032.4 Head Injuries

F-41 (Rev. 18, 12/10)

TABLE OF CONTENTS

§3033 Vascular Injuries§3034 Ligaments

§3034.1 Tendons§3035 Intervertebral Discs

§3035.1 Pathophysiology of Intervertebral Discs§3035.2 Anatomy and Physiology§3035.3 Description of the Disc§3035.4 Degenerative Disc§3035.5 Bulging Discs§3035.6 Terminology

§3040 Pain§3040.1 Introduction§3040.2 Learned Pain§3040.3 Evaluation of Hysterical Pain§3040.4 Effect of Settlement on Compensation Claimant’s Impairments§3040.5 Pain Management§3040.6 Placebos§3040.7 Malingering

§3040.7.1 Chronic Pain and Somatization§3040.8 Surgical Considerations in Pain Management§3040.9 Physical Impairment Ratings

§3040.9.1 Evaluation of Chronic Pain§3040.9.2 Evaluation of Chronic Pain Syndromes

§3040.10 The Impact of Chronic Pain§3050 Psychological Factors: Emotional Trauma

§3050.1 Use of Placebos§3050.2 Justifiable Lies§3050.3 Legal Issues of Using Placebos§3050.4 Emotional Trauma

§3060 Cervical Injuries (Including Whiplash)§3061 Diagnosis and Treatment of Neck Pain§3062 Whiplash-Cervical Sprain Injuries§3063 Causes of Head-Neck Pain — The Temporomandibular Joint (TMJ)§3064 Post Traumatic Cervical Dystonia§3065 The Cervical Spine — Risk of Injury

§3070 Disability and Permanency of Soft Tissue Injuries§3071 Disability§3072 Components of Disability§3073 Determining When Client Is Permanent and Stationary

Sample: Chart Showing Characteristics of Experts and Pseudoexperts§3080 Testing Methods

§3081 Stress X-Rays§3082 Arthrograms§3083 Arteriograms and Venograms§3084 Bone Scans

§3084.1 Myelograms

F-42


§3085 Magnetic Resonance Imaging and CT Scans§3086 Doppler§3087 Radiology and Nuclear Imaging§3088 Discograms and Pressure Measurements§3089 Less Common Tests

§3090 Treatment§3091 Coverage vs. Noncoverage§3092 The TENS Unit§3093 Traction§3094 Treatment for Whiplash§3095 Treatment of Nerve Injuries§3096 Healing Time

Chapter 31: Evaluating and Settling of Medical Malpractice Claims

§3100 Introduction§3101 Al Capone’s Theory of Settlement§3102 A Word to the New Lawyer§3103 Screening the Medical Malpractice Case

§3110 Preparing for Settlement Means Preparing Your Case for Trial§3111 When to Discuss Settlement With Your Client§3112 Pre-Suit Expert Consultation§3113 The Expert’s Preliminary Written Report

§3120 Negotiation Strategy§3121 Preparing Your Client for Settlement Negotiations§3122 Explaining the Benefits and Pitfalls of Litigation

§3122.1 Financial Risks§3130 Factors to Consider in Making Your Settlement Evaluation

§3131 Your Opponent’s Perception of You as an Attorney§3132 Jurisdiction and Venue

§3132.1 State or Federal Court§3132.2 Prior Case Experience in the Jurisdiction§3132.3 Venue§3132.4 The Judge

§3133 The Plaintiff§3133.1 Physical Appearance§3133.2 Personal Background§3133.3 Jury Appeal§3133.4 Credibility§3133.5 Conduct§3133.6 Criminal Background§3133.7 Work History§3133.8 Prior Medical Problems§3133.9 Motivation§3133.10 Prior Claims§3133.11 Handling the Plaintiff’s Deposition

F-43 (Rev. 18, 12/10)

TABLE OF CONTENTS

§3134 The Defendant Physician§3134.1 Conduct§3134.2 Criminal Background§3134.3 Past Medical Problems or Impairment§3134.4 Collectibility§3134.5 Prior Claims§3134.6 Professional Qualifications§3134.7 Performance in Deposition

§3135 Opposing Counsel§3135.1 Style of Practice§3135.2 Who Is in Control of the Settlement Negotiations?

§3140 Evaluating Experts§3141 Qualifications§3142 Knowledge About the Case§3143 Use of Literature§3144 Reputation§3145 Communications Skills§3146 The Plaintiff’s Expert§3147 The Defendant’s Expert

§3150 Issues With Jury Appeal§3151 Aggravated Conduct of Similar Prior Occurrences§3152 Catastrophic Injuries§3153 Significant Admissions

§3160 The Settlement Package§3161 The Demand Letter

§3161.1 Liability Issues§3161.2 Causation§3161.3 Burden of Proof§3161.4 Damages§3161.5 Deadlines

§3162 Listen to Your Opponent’s Evaluation§3170 Final Considerations

§3171 The Art of Compromise§3172 The Critical Importance of Timing§3173 Costs of Further Prosecution or Defense§3174 The Role of Prejudgment Interest§3175 At Trial: Knowing When to Settle§3176 Conclusion: Persevere!

Chapter 31A: Investigating Cell Phone Use in Vehicle LiabilityClaim Recoveries

§3100A Introduction§3110A Cell Phone Distraction and Causation§3120A Vicarious Employer Liability

F-44


§3130A Case Investigation§3131A Did Driver Use Hands-Free Technology?§3132A Does Local Law Prohibit Cell Phone Use While Driving?§3133A Does Driver’s Company Have a Cell Phone Policy?§3134A What Does Accident Report Say?§3135A What Does Client Say?§3136A What Do Witnesses Say?

§3140A Checklist — Questions for Employer§3150A Checklist — Questions for Adverse Driver§3160A Resources

Chapter 32: Settling Auto Accident Cases

§3200 What Is a Viable Auto Accident Claim?§3201 Determine Liability§3202 Confirm the Coverage§3203 How Extensive Are the Injuries?§3204 Is Property Damage the Source of Conflict?§3205 Is There Personal Injury Protection or MedPay Coverage?

§3210 Take Control of the Case§3211 Who’s in Charge?§3212 How Do You Maintain Control?§3213 “How Much Is My Case Worth?”

§3220 What to Accomplish in the First Month of Case Work§3221 Always Obtain the Police Report§3222 Conduct Your Investigation

§3222.1 Retain an Expert§3222.2 Tips on Investigating Pedestrian Accidents

§3223 Assess Your Ability to Handle the Case§3223.1 When to Decline a Case

§3230 Dealing With the Insurance Company§3231 How to Handle First Party Coverage§3232 Is There a Third Party Involved?§3233 Examine the Underinsured Motorist Coverage§3234 Does Workers’ Compensation Coverage Apply?

§3240 The Treatment and Recovery Phase§3241 Monitor and Document the Client’s Progress§3242 How the Care Provider Affects the Claim

§3242.1 Health Maintenance Organizations (“HMOs”), Health Insurers,Medicare and Medicaid

§3242.2 Chiropractors§3242.3 Independent Medical Examinations

§3243 Prepare Your Documentation§3250 Working With the Adjuster

§3251 Establishing Settlement Authority§3252 Litigation Specialists

F-45 (Rev. 18, 12/10)

TABLE OF CONTENTS

§3260 Preparing the Demand§3270 Discuss the Claim Value With Your Client§3280 Conclusion

Chapter 33: Avoiding and Resolving the Classically Weak Case

§3300 Introduction§3301 Provide Escape Hatch in Contract of Representation

§3310 No Insurance, Assets or Coverage§3320 Controlling Client’s Unreasonable Expectations§3330 Classically Weak Liability Cases

§3331 Slip and Fall§3332 Intersection Collisions§3333 Medical Malpractice§3334 Product Liability§3335 Disappearing Witnesses

§3340 Classic Damage Problems§3341 Delayed Medical Treatment§3342 Failure to Connect Injury to Accident and Treatment§3343 Excessive Chiropractic Bills§3344 Excessive Medical Treatment§3345 Prior Accidents and Injuries§3346 Clients Who Exaggerate Symptoms§3347 Negligible Property Damage

§3350 Bringing Weak Cases to Conclusion§3351 Stress Positives and Gloss Over Weaknesses§3352 Mediation§3353 Arbitration§3354 Compromising Medical Bills

§3360 Convincing Unreasonable Clients to Settle§3361 Require Client to Sign Letter§3362 Use Economic Reality Approach

§3370 Using Other AttorneysChecklist: Key Points to BewareChecklist: Enhance and Resolve Case

Chapter 34: Trauma & Post Traumatic Stress Disorder (PTSD): A Brief Primer for Civil Litigation

§3400 Overview: What Is PTSD?§3401 Diagnostic Criteria — History§3402 PTSD & Civil Litigation

§3410 Diagnosis§3411 DSM-III-R Criteria§3412 DSM-IV Criteria

F-46


§3412.1 PTSD Criteria Overview§3412.1.1 Trauma§3412.1.2 Re-Experience, Avoidance & Arousal§3412.1.3 Onset & Duration§3412.1.4 Functional Disturbance

§3412.2 Clinical Interview§3413 DSM Multi-Axial System§3414 DSM & Civil Litigation§3415 PTSD Diagnosis — Essential Evidence

§3420 Reserved§3430 Litigation Considerations

§3431 Use of a Consultant: A Critical Asset§3432 PTSD as a Compensable Injury

§3432.1 Prognosis§3432.2 Risk Factors§3432.3 Role of Treatment

§3433 Child Trauma Claimants§3434 Causation & Alternative Causal Factors

§3434.1 Potential Alternative Causal Factors§3434.2 PTSD Alternative Causes

§3434.2.1 Pre-Existing Trauma§3434.2.2 Pre-Existing PTSD§3434.2.3 Medical Mimics

§3440 Damages§3441 Psychological Pain & Suffering§3442 Psychosocial Injury & Loss of Consortium§3443 Cognitive Damages§3444 Future Risk of Illness§3445 Direct Economic Loss

§3450 Checklist for Analyzing the Trauma Based Claim§3460 Common Errors Made in Diagnosis of PTSD§3470 Theories & Strategies for Enhancing or Mitigating the Trauma Based Claim§3480 Conclusion§3490 Overview of Case Law Involving Post-Traumatic Stress Disorder (PTSD)

Chapter 35: Stacking Un/Underinsured Motorist Coverages

§3500 Introduction§3510 What Stacking Is and What It Does

§3511 Precluded by Statute or Anti-Stacking Provisions§3512 Limited by Amount§3513 Limited by Number of Policies§3514 Reduced by Amount of Available Liability Coverage

§3520 Multiple UM Policies§3521 “Other Insurance” Provisions

F-47 (Rev. 18, 12/10)

TABLE OF CONTENTS

§3522 Stacking Precluded§3523 Pro Rata Stacking§3524 Class II Stacking§3525 Stacking Minimum UM to Create UIM Coverage

§3530 Multiple Vehicles on Single Policy§3540 Fleet Policies§3550 Primary/Secondary UM/UIM Coverages

§3551 Majority Rule§3552 Georgia Rule

§3552.1 Receipt of Premium§3552.2 More Closely Identified§3552.3 Primary Coverage — Not Availed

§3560 Coverage for Punitive Damages§3570 Subrogation Rights On Un/Underinsured Motorist Carriers§3580 Summary

Chapter 35A: Investigating Slip and Fall and Dog Bite Claims

§3500A Introduction§3510A Foundation of Claim§3520A Injury at Home of Friend or Acquaintance§3530A Government Liability§3540A Sources of Insurance Coverage§3550A Collectability of Judgment§3560A Case Investigation§3570A Components of Thorough Investigation§3580A Investigating Work Related Injury§3590A Anticipating Defenses§35100A Medical Payments Coverage§35110A Investigation Checklist§35120A Preparing the Premises Liability Claim Arising From Slips and Falls on Snow and Ice

§35121A Introduction§35122A Range of Injuries and Damages§35123A Investigative Checklist

§35130A Preparing the Dog Bite Claim§35131A Introduction§35132A Assignment to Adjuster§35133A Adjuster Will Confirm Coverage and Establish Reserve§35134A Adjuster’s Investigation§35135A Other Steps by Adjuster in Handling Claim§35136A Investigative Approaches for Plaintiff’s Counsel§35137A Sources of Recovery

F-48


Chapter 36: Investigating & Litigating Nursing Home Abuse

§3600 Introduction§3610 Elder Abuse Defined§3620 Nursing Home Abuse Facts§3630 Initial Interview Checklist§3640 Liability Insurance Considerations

§3641 Insurance Reforms — State Overview§3650 Preparing Your Case

§3651 Typical Causes of Action§3652 Medical Malpractice or Elder Abuse?§3653 Negligence§3654 Causation§3655 Standard of Care§3656 Discovery§3657 Use of Experts

§3660 Recent Cases§3670 Sample Jury Verdicts§3680 Resources

Chapter 37: Investigating and Evaluating the Product Liability Claim

§3700 Introduction§3710 Investigation Nuts and Bolts

§3711 The Product§3711.1 Identify the Product§3711.2 Obtain the Product§3711.3 Inspect the Product§3711.4 Photograph the Product§3711.5 Videotape the Product Inspection§3711.6 Closely Examine Product Warnings

§3712 The Product Manufacturer§3712.1 Research Prior Product-Related Complaints§3712.2 Look for Key Words and Phrases in Company Documents§3712.3 Investigate Sources of Component Parts

§3713 The Opposition§3713.1 Investigate Opposing Counsel’s Background and Experience§3713.2 Anticipate Failure-to-Maintain Defenses

§3720 Factors Affecting Case Evaluation and Settlement§3721 Case Considerations

§3721.1 Liability Picture§3721.2 Damages§3721.3 Venue/Jurisdiction§3721.4 The Role of Precedent

F-49 (Rev. 18, 12/10)

TABLE OF CONTENTS

§3722 Party Considerations§3722.1 Appearance of the Plaintiff§3722.2 Status of the Defendant§3722.3 Collectability§3722.4 Parties’ Litigation and Settlement Philosophies

§3723 Other Considerations§3723.1 Regulatory Backdrop§3723.2 Media and Public Opinion Backdrop

Chapter 38: Investigating False Arrest Claims

§3800 Introduction§3810 Investigative Strategies

§3811 Five Steps the Defendant Should Have Followed§3812 Areas to Focus Investigation On

§3820 Investigating the Damages§3830 Investigating the Defendant(s)

§3831 Investigating the Business Establishment§3832 Investigating the Apprehending Security Guard(s)§3833 Investigating the Security Provider/Vendor

§3840 Investigating the Liability Insurance Picture§3850 Investigating the Clients§3860 Investigating the Case’s Criminal/Police Aspects§3870 Investigating the Witnesses§3880 Investigating the Venue§3890 Investigating Opposing Counsel

Chapter 39: Investigating Negligent Security Claims in Pursuing Damages for Crime Victims

§3900 Introduction§3910 Investigative Strategies

§3911 Possible Theories of Liability§3912 Key Factors§3913 Assessing the Need for Investigation

§3920 Investigating the Premises§3921 Inspection of Premises§3922 Assessing Security Systems

§3930 Investigating the Criminal/Police Aspects§3931 Obtaining Police Data§3932 Investigating the Wrongdoer/Assailant

§3940 Causation Investigation§3950 Investigating Defendants/Potential Defendants

§3951 Investigating the Property Owner/Manager§3952 Investigating the Security Provider/Vendor

§3960 Client Investigation and Background§3970 Investigating the Damages

F-50


Chapter 40: Investigating Workplace Violence Claims

§4000 Introduction§4001 OSHA

§4010 Context, Causes, and Prevalence of Workplace Violence Claims§4020 Possible Theories of Liability§4030 Investigative Approaches

§4031 Components of Successful Claim§4032 Initial Avenues of Inquiry

§4040 Investigating the Warning Signs§4041 Case Study: Multiple Shooting Fatalities at Mississippi Plant

§4050 Negligent Retention and Supervision§4051 Investigating Negligent Retention§4052 Investigating Negligent Supervision

§4060 Anti-Violence Programs§4070 Investigating Terrorism Preparedness§4080 Investigating the Insurance Coverage

Chapter 41: Sexual Molestation Claims: Liability and Coverage Issues

§4100 Introduction§4110 Molestation Defined§4120 Molestation by Professionals: Breach of Trust

§4121 Therapist and Patient§4122 Other Health Care Providers and Patients§4123 Attorney and Client

§4130 Potential Causes of Action§4140 Liability of Perpetrator’s Employer

§4141 Vicarious Liability§4142 Independent Ratification§4143 Negligent Hiring and Supervision§4144 Youth Organizations and Child Participants: Negligent Failure to Protect

§4150 Insurance Coverage for Sexual Molestation Claims§4151 Coverage for Perpetrator§4152 Coverage for Employer

§4160 Pre-Suit Investigation and Settlement§4161 Quick Settlement When Defendant Requires Secrecy§4162 Information to Gather From Victim§4163 Documents to Obtain and Examine§4164 Witnesses

§4170 Additional Resources

F-51 (Rev. 18, 12/10)

TABLE OF CONTENTS

Chapter 42: How to Combat Smaller and Smaller SettlementOffers in Minor Impact Soft Tissue Injury Cases

§4200 Trends in Settlement Practices§4201 Introduction§4202 Common Insurer Delaying Tactics§4203 Bad Faith Practices

§4210 Insurers’ Approach to Low Impact Soft Tissue Injury Cases§4211 Colossus and the Low-Ball Offer§4212 Colossus Variables§4213 The Biomechanical Expert and the Orthopedist: The One, Two Punch

§4220 Solutions to the Shrinking Settlement Offer§4221 Don’t Take the Case: An Inadequate Response§4222 Hold Down Overhead (the “Lean & Mean Approach”) and Consider Low

Settlement Offers§4223 Bite the Bullet and Try Soft Tissue Cases

§4230 Tips for Maximizing the Value of Minor Impact Soft Tissue Injury Cases§4231 Research and Investigate

§4231.1 Countering the Insurer’s One, Two Punch§4231.2 Obtain Latest Medical and Scientific Information§4231.3 Understand the Spine§4231.4 Learn the Basics of Biomechanics and Delta V§4231.5 Find Hidden Property Damage§4231.6 Use Insurance Institute for Highway Safety as a Resource

§4232 Conduct Exhaustive Discovery§4232.1 Interrogatories§4232.2 Depositions§4232.3 Deposition/Cross-Examination Outline for Defendant’s

Biomechanics Expert§4232.4 Deposition/Cross-Examination Outline for Defendant’s

Orthopedic Surgeon§4233 Use Motions in Limine and Voir Dire

§4233.1 Bring Appropriate Motions in Limine§4233.2 Typical Grounds for Motions in Limine§4233.3 Conduct Exhaustive Voir Dire

§4234 Discredit Opinions of Defense Experts§4234.1 Expose Misrepresentations of Biomechanical Experts§4234.2 Hire Your Own Experts

Table of Cases

Index

F-52


About the Authors

Ronald V. Miller, Jr. received his bachelor’s degree in finance from Loyola College. He then attendedthe University of Baltimore School of Law, graduating magna cum laude. While at the University of Balti-more, Mr. Miller was chosen as the Executive Editor of the University of Baltimore Law Review and waselected to the Heuisler Honor Society. In 2006, he was chosen as one of the forty elite lawyers in Marylandby SmartCEO, which made the selection after contacting thousands of Maryland attorneys and asking themto assess whom they believed to be the top attorneys in Maryland. Mr. Miller is also a member of the MillionDollar Advocates Forum, a prestigious group of trial lawyers in the United States with membership limitedto attorneys who have won million and multi-million dollar verdicts, awards, and settlements.

Mr. Miller is able to evaluate insurance issues from the perspectives of both the plaintiff and the insur-ance company. His practice initially focused representing pharmaceutical companies. He handled casesaround the country for companies such as Bayer and GlaxoSmithKline, as well as for various insurance com-panies. His practice now focuses on representing personal injury clients in Maryland who have been injuredas the result of motor vehicle accidents, defective products, or medical malpractice. Mr. Miller is also a Pro-fessor at the University of Baltimore School of Law, where he teaches insurance law.

Kevin M. Quinley is Senior Vice President of Risk Services for MEDMARC Insurance Company andHamilton Resources Corp., Fairfax, VA. He has a BA degree from Wake Forest University and an MA degreefrom the College of William and Mary. He holds the Chartered Property & Casualty Underwriter (CPCU)designation and specialty designations from the American Insurance Institute in Risk Management (ARM),in Claims (AIC), in Reinsurance (ARe) and in Management (AIM).

A Contributing Editor of Claims Magazine, Kevin co-authored the Insurance Institute’s AIC 33 textbookon WORKERS COMPENSATION CLAIMS and INDUSTRIAL LOW BACK PAIN published by the Michie Company.

The author of over 300 published articles and six books, his articles have appeared in publications includ-ing Business Insurance, The National Underwriter, Risk Management, Occupational Safety & Health, Best’sReview, CPCU Journal, Insurance Settlement Journal, and For the Defense. He is the author of TIME MAN-AGEMENT FOR CLAIM PROFESSIONALS, CLAIM MANAGEMENT, THE QUALITY PLAN, LITIGATION MANAGEMENT, andWINNING STRATEGIES FOR NEGOTIATING CLAIMS. His sixth book, MANAGING PRODUCT LIABILITY RISKS was justpublished in early 1998.

He teaches classes in insurance, claims, and risk management for the Washington D.C. Chapter of theSociety of CPCU. He is a past President of the Washington D.C. Chapter of CPCU. He is a frequent writerand speaker on topics relating to risk management and claims-handling. He can be reached via the Internetat [email protected].

Kenneth A. Satin is an attorney located in Newport Beach, California. He specializes in plaintiff’s per-sonal injury cases with particular expertise in claims involving automobile accidents, motorcycle accidents,and wrongful death.

Mr. Satin has served as Judge Pro Tempore for the Los Angeles County Municipal Court and the OrangeCounty Municipal Court over the last 25 years. He is a former law professor at California State University,Fullerton and Western State University College of Law. Mr. Satin has written articles for numerous publi-cations and has hosted several radio and television programs concerning legal perspectives. He can bereached at 949-851-2870.

Paul D. DiBlasi is a structured settlement consultant in Columbus, Ohio. He represents the national firmof Structured Financial Associates, Inc. Prior to being a structured settlement consultant, he worked in theclaims function of the casualty insurance industry for 14 years. He first started as a staff field adjuster andhas held the positions of supervisor, claims manager and regional claims manager. Since 1985, he hasworked as a structured settlement consultant for casualty companies, self-insureds and the defense industry.He has given numerous seminars to adjusters and attorneys on the use of structured settlements.

Mr. DiBlasi is a member of the Columbus Claims Association, the Columbus Life Underwriters Association,the Ohio Society of Health Care Risk Managers, the Ohio Association of Civil Trial Attorneys and the NationalStructured Settlement Trade Association.

F-53 (Rev. 18, 12/10)

ABOUT THE AUTHORS

John F. Distel is the managing partner and Roger L. Heaton is an associate of Liebman, Reiner &McNeil’s San Diego office. Both authors received their J.D. degrees from the University of San Diego. Mr.Distel concentrates on major personal injury litigation, has been a Judge Pro Tem and currently acts as anArbitrator for the San Diego Superior Court. Mr. Heaton concentrates on personal injury litigation and civilappellate matters. They can be reached at (619) 232-0777.

John Farrell Fay is the trial counsel at Siegfried and Jensen, a Salt Lake City law firm dedicated exclusivelyto plaintiff’s personal injury. He is an experienced litigator in both judge and jury trials, as well as hundreds ofarbitrations. Mr. Fay received his B.S. from Merrimack College in Massachusetts and his J.D. from WesternState University in San Diego; he is a member of both the California and Utah state bars. He has served as aJudge Pro Temp in the Los Angeles Superior and Municipal Courts. He is a personal injury arbitrator for theAmerican Arbitration Association. Recently he authored a text, Arbitrating Personal Injury Claims (Wiley,Spring 1992).

Joseph M. Fine is the senior partner of Fine & Faure, Albuquerque, N.M. He is a member of the NewMexico Medical Review Committee, the New Mexico Trial Lawyers, Advocate, American Trial LawyersAssociation and a Certified Civil Trial Advocate by the National Board of Trial Advocacy.

James W. Fritz has practiced law for over fifteen years, with emphasis on personal injury and insurancematters. He is certified as a specialist in personal injury and wrongful death litigation by the State Bar ofArizona since 1991. He has tried over one hundred jury trials and he holds Advocate status as a member ofthe American Board of Trial Advocates. Mr. Fritz is also a member of the Association of Trial Lawyers ofAmerica, the Defense Research Institute, the Arizona Trial Lawyers Association, the State Bar of Arizonaand the Maricopa County Bar Association. He is currently treasurer of the Executive Council of the Trial Prac-tice Section of the State Bar of Arizona.

L. Robert Fuselier is a member of the California State Bar, specializing in business law and businesslitigation. He obtained his J.D. from Western State University in San Diego, graduating with honors.Presently, Mr. Fuselier is the National Claims Manager for Forester Indemnity Insurance Company. Heis a licensed independent insurance adjuster with the state of California and he owns and operates FrontierInsurance Adjusters of Oceanside/Carlsbad, California. Mr. Fuselier has successfully represented employersbefore the California Unemployment Insurance Appeals Board against the Employment DevelopmentDepartment of the state of California in actions where the state had determined independent contractors wereactually employees.

Ed Grant, C.P.C.U, has 10 years of property and casualty claims experience and presently works as aLitigation Examiner for a major insurance company. Mr. Grant received his B.A. from Ursinus College andhis M.B.A. from Moravian College.

William N. Harsha, M.D., J.D., M.S., is a board-certified orthopedist with more than 40 years of medicalexperience. He received his Juris Doctorate from the University of Oklahoma City. Dr. Harsha practices inthree clinics in Oklahoma City.

David M. Helbraun is an associate attorney in the San Francisco office of Wilson, Wiser, Moskowitz,Edelman & Dicker. Mr. Helbraun’s practice emphasizes insurance coverage, bad faith claims and professionalliability.

Randy M. Hess is a shareholder of the law firm Adleson, Hess & Kelly, a professional corporation, wherehis practice focuses on insurance coverage disputes. He received his B. S. degree from Arizona State Uni-versity and J. D. degree from the University of Santa Clara School of Law in 1979. Mr. Hess represents pol-icyholders, including individuals, businesses, publicly held companies and governmental entities in cover-age disputes. Mr. Hess is a past chairperson for the Executive Committee of the Insurance Law Section ofthe Santa Clara County Bar Association.

F-54


Ronald W. Horgan is a partner in the firm of Craige & Horgan in Tulsa, Oklahoma. A graduate of OralRoberts University and University of Oklahoma College of Law, Mr. Horgan specializes in litigation withprimary emphasis on all types of personal injury and commercial litigation. He is a member of the Ameri-can Board of Trial Advocates, the Association of Trial Lawyers of America and the Oklahoma Trial LawyersAssociation. He is currently the Chair of the State Delegates of ATLA, a member of the Board of Governorsand a member of its Executive Committee.

Mr. Horgan has authored articles on topics relating to medical malpractice and products liability which havebeen published in Trial magazine and OTLA’s Advocate. He served as lead counsel on several major casesinvolving issues of medical malpractice as well as sovereign immunity. He is a frequent lecturer at seminars andhas served as a faculty member on both the Basic and Advanced Colleges of Trial Advocacy sponsored by ATLA.

Gerald S. Leeseberg is a partner with the Columbus, OH firm of Wolske and Blue. The firm specializesin medical malpractice, products liability and general personal injury. Mr. Leeseberg received his J.D. fromthe Ohio State College of Law in 1979. He is board-certified in civil litigation by the National Board of TrialAdvocacy. Mr. Leeseberg frequently lectures on general tort and malpractice topics.

William Mann is with the Columbus, OH law firm of Wolske and Blue, which handles exclusively plaintiffpersonal injury and medical malpractice litigation. Mr. Mann received his B.A. from Case Western ReserveUniversity and his J.D. from the University of Dayton. He is a member of the Association of Trial Lawyers ofAmerica, the Ohio Academy of Trial Lawyers and the Ohio State Bar Association, where he serves on the LegalEthics and Professional Conduct Committee. He is the author of “Stare Wars: The Corporate Empire StakesBack?” I Ohio Lawyer No. 4 (1987) 23. Mr. Mann frequently lectures on tort, insurance and litigation issues,and has been recognized by Who’s Who In American Law and The Society of Young American Professionals.

The late Marie Elisa Marzani was an attorney for 13 years and was a partner with the firm of Epstein,O’Neill, Utan, Wilson & Marzani in Scranton, Pennsylvania from 1987 to 1990. A Phi Alpha Delta graduateof Temple University Law School, Ms. Marzani was also a professor of women and the law at Maryland Collegeand the University of Scranton. She had previously published for The Practical Lawyer. Her membershipsincluded the Pennsylvania and American Bar Associations, Pennsylvania Trial Lawyers Association, and theAssociation of Trial Lawyers of America.

Samuel M. Meeks, CPCU, AIC, AIM, consults, writes claims-related materials and conducts instruc-tional workshops. He has over thirty years experience in the Property Casualty Insurance Industry, primar-ily in claims. His titles have ranged from Field Claims Representative to Senior Vice President. He also holdsan MBA and a BA in Education. He may be reached at (714) 639-0572.

Sarah H. Meirson is an associate with the Columbus, Ohio law firm of Wolske and Blue, which exclusivelyhandles plaintiff personal injury, product liability and medical malpractice. Ms. Meirson attended theCleveland institute of Music prior to receiving her B.A. from The Ohio State University. She received her J.D.from The Ohio State University College of Law in 1992. Ms. Meirson is a member of the Association of TrialLawyers of America and the Ohio State Bar Association. She may be reached at (614) 228-6969.

Kenneth J. Mendelsohn is a partner in the firm of Beasley, Wilson, Allen, Mendelsohn, Jemison & James,P.C. in Montgomery Alabama. Mr. Mendelsohn received his B.S. from Washington & Lee University and hisJ.D. from the University of Alabama. Following law school he served as law clerk to the Honorable TrumanHobbs, U.S. District Court Judge. He devotes his practice to representing plaintiffs in lawsuits involvinginsurance claims, automobile collisions, products liability claims, and the Dram Shop Act. Mr. Mendelsohnis a frequent speaker on general trial topics on the state and national level. He is a past president of theMontgomery County Trial Lawyers Association; and a member of the American Trial Lawyers Association.

Mr. Mendelsohn and his law partner, Jere L. Beasley, obtained a fifteen million dollar wrongful deathverdict for the mother of a seven-year-old child who was killed in a motor vehicle collision. Recently Mr.Beasley and Mr. Mendelsohn obtained a six million dollar verdict against an insurance company on a badfaith claim that the insurance company failed to investigate and pay an uninsured motorist claim.

F-55 (Rev. 18, 12/10)

ABOUT THE AUTHORS

Joseph P. Monteleone is Senior Vice President and Claims Counsel at Reliance National in New Yorkwhich, through its affiliated insurance companies, is a major underwriter of employment practices liabilityinsurance and other casualty insurance products.

Angeline Nanni is a structured settlement specialist with Structured Financial Associates, Inc., in Baltimore,Maryland. Prior to working as a settlement specialist in the Baltimore and Washington areas, she was Directorof Administration overseeing their 30 offices nationwide. During that time, she handled approximately 4000cases involving structured settlements.

Ms. Nanni has conducted numerous presentations and training seminars to various groups on structuredsettlements. She is a member of the National Structured Settlement Trade Association, the WashingtonClaims Association and the Maryland Society for Health Care Risk Management.

W.B. (Larry) Nelson is Professor of Economics and Business Administration at the University of Texasat Arlington. He was Dean of the College of Business from 1965 - 1973, guiding it to full accreditation ofboth its undergraduate and MBA programs by the American Assembly of Collegiate Schools of Business. Heresigned the Deanship to return to full-time teaching, research, and consulting in economics and labor relations.He is an Arbitrator on the panels of both the Federal Mediation Conciliation Service and the AmericanArbitration Association and a member of the National Academy of Arbitrators.

His economics consulting is largely restricted to personal injury litigation, an area in which he has beenactively involved for some twenty years. He has published extensively, and is a member of the AmericanEconomic Association, the Society of Professionals in Dispute Resolution, and other professional societies.Dr. Nelson can be reached at the University (817) 273-3061 or at (817) 261-3916 or (214) 248-8436. Hismailing address is 917 Sherwood Drive, Arlington, Texas 76013.

Arthur F. Norris is an Insurance Claims Consultant and provides consultations and expert testimony on cov-erage, claims department customs and practices, and questions of good or bad faith. He has 23 years experiencewith Wausau and Western Employers’ Insurance Companies and holds a designation of Associate in Risk Man-agement. He can be contacted at PO. Box 8502, Rowland Heights, CA 91748; telephone (818) 964-9513.

Mark A. Racine, AIC, has 17 years of experience in multi-line claims handling in the Fort Wayne, Indiana,area. The past-president of the Fort Wayne Adjusters Association and nominee for Indiana Adjuster of the Year,he has experience with both independent and staff companies. He is presently a claims specialist withCincinnati Insurance Company and is also an instructor in its education and training program.

David Z. Ribakoff is an associate at Reuben & Novicoff, a Beverly Hills, California law firm specializingin complex civil litigation where he has represented policyholders in disputes with insurance carriers and hasalso represented major insurance brokers in various matters, including errors and omissions, employeedishonesty and trade secrets violations. Mr. Ribakoff is an active member of the Tort and Insurance PracticeSection of the American Bar Association, and is currently an assistant editor for the TIPS/Insurance CoverageLitigation Section Newsletter.

Ellsworth T. Rundlett III is a general practice trial lawyer with 18 years of experience in the field ofpersonal injury. He is on the Board of Governors of both the Maine Bar Association and the Maine TrialLawyers Association. He has achieved advocate status with the National College of Advocacy and wasrecently certified as a civil trial specialist by the National Board of Trial Advocacy. He has lecturedthroughout his region on negligence law and insurance law and was an instructor of torts for the NationalAcademy of Paralegal Studies. He is the subject of biographical reference in Who’s Who in American Law.

John A. Russo is a partner with Roth & Russo in Oakland, California. Mr. Russo’s practice emphasizesbusiness litigation, commercial real estate, and professional malpractice.

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David P. Schack is a partner in the law firm of Mitchell, Silberberg & Knupp LLP, located in Los Angeles,California. He is a business trial lawyer who represents policyholders on insurance issues. Mr. Schack receivedhis B.A. in philosophy with honors and distinction from Stanford University in 1979. He was also elected to PhiBeta Kappa. He earned his law degree from UCLA School of Law where he was an editor of the UCLA LawReview and an editor of the UCLA Journal of International Law. Mr. Schack has practiced extensively in thearea of insurance. He has handled numerous negotiations with, and lawsuits against, insurance companies toobtain insurance coverage and insurance benefits. He has handled complex insurance coverage disputesinvolving virtually all types of insurance policies.

Mr. Schack is a member of the American Bar Association Committee on Insurance Coverage Litigationand a member of the Los Angeles County Bar Association. He has lectured and written on the topic of insurancecoverage. His other publications include, The Right to Privacy for Business Entities, 24 Santa Clara LawReview 53 (1984); and Reinsurance and Insurer Insolvency: The Problem of Direct Recovery by the OriginalInsured or Injured Claimant, 29 U.C.L.A. Law Review 872 (1982).

Stan Schultz is the Chief Executive Officer and one of the three principal owners of IBAR SettlementCompany, located in San Marino, California. Following his graduation from the University of SouthernCalifornia in 1976, Mr. Schultz was employed as an insurance field adjuster and investigator. Upon joiningIBAR, Inc. in 1980, Mr. Schultz began his training in the newly emerging structured settlement industry. Sincethat time Mr. Schultz has been involved as a consultant on approximately 1500 structured settlement matters.Mr. Schultz has qualified and testified in state court as an expert in the area of structured settlement annuities.In addition to his structured settlement consultation, Mr. Schultz is currently involved as an advisory memberof over 100 Special Needs Trusts and has co-authored an article on this subject appearing in the June1993 issue of the CTLA Forum.

Julie Schwartz, M.S., is the founder of Occupational and Career Services, Inc. (OCS), 2823 North 48thStreet, Suite 3, Phoenix, Arizona, 85008 (602) 840-9084. She serves as forensic consultant, expert witnessfor plaintiff and defense cases, and rehabilitation case manager. OCS, Inc. staff perform all of the client servicesand forensic assessments reviewed in this chapter on Determining and Proving Economic Damages, includingcalculations of future damages and present values.

Robert K. Scott is a partner in the law firm of Shernoff, Scott & Metzger, Newport Beach, California, and atrial lawyer with 17 years’ experience, specializing in insurance bad faith litigation. A graduate of CaliforniaWestern School of Law, he is a board member of the California Trial Lawyers Association, a member ofnumerous other legal associations and frequent lecturer and author on legal topics.

The authors gratefully acknowledge the assistance of John C. McCarty, a graduate of Western StateUniversity College of Law, with trial experience in insurance bad faith cases.

Duane W. Shewaga is a shareholder of the law firm of Adleson, Hess & Kelly, a professional corpora-tion, located in Campbell, California. He received his J.D. degree from the University of Santa Clara Schoolof Law in 1984 with summa cum laude honors. Mr. Shewaga’s practice emphasizes insurance coverage rep-resentation for policyholders, insurance bad faith litigation, real estate secured transactions and bankruptcylitigation, representing particularly businesses, foreclosure trustees and lenders, as well as employers whohave been sued by employees. Mr. Shewaga is a member of the Santa Clara County Bar Association’s Insur-ance Law Section Executive Committee, the editor for the section’s monthly insurance law newsletter, andhas been elected as chairperson of the Committee for the 1998-1999 term.

Mary Jo Smerz, J.D., is a partner in the law firm of Lowrey & Smerz, Ltd. in Chicago, IL. She has beenwith the firm since 1982. She specializes in personal injury, medical malpractice and products liability cases.Ms. Smerz received her J.D. from DePaul University College of Law in 1981. She has had articles publishedin Illinois Trial Lawyers Journal, Trial Diplomacy Journal, and Chicago Bar Association Record. She is anactive member of the Chicago and Illinois State Bar Associations, the Illinois Trial Lawyer’s Association,and the Women’s Bar Association of Illinois. Ms. Smerz can be reached at 100 Monroe Street, 21st Floor,Chicago, IL 60603; telephone number (312) 332-5433.

F-57 (Rev. 18, 12/10)

ABOUT THE AUTHORS

Roy N. Trotter received formal training in techniques of investigation while at The Army IntelligenceSchool, Fort Holabird, Maryland; after which he was assigned to the Cincinnati Field Office where heconducted background investigations of candidates for security clearance.

Mr. Trotter spent a short time with Dun & Bradstreet conducting business investigation, then in 1960 hejoined a national independent adjustment firm. He worked as a staff and independent adjuster, supervisor, lit-igation examiner, claims manager and field investigator for the Indiana Department of Insurance.

Mr. Trotter opened his own office in the spring of 1988. He passed away in 2008.

Robert L. Tuma is a trial lawyer with over 25 years of experience. He specializes in the area of bodilyinjury, with emphasis on automobile accidents, products liability and wrongful death claims.

Mr. Tuma is the President and Founder of Professional Negotiations, Inc., a company designed as anew approach to negotiations and dispute resolution. He has conducted public and private seminars innegotiations, including seminars to insurance adjusters and attorneys. He has also acted as a negotiatingconsultant and mediator.

His extensive experience in the field of negotiating includes resolving over 2,000 claims, including bodilyinjury and wrongful death cases.

Robert J. Varley is an associate with the Veigas Law Group, P.C., in Montgomery, Alabama, and currentlyspecializes in personal injury and worker’s compensation cases. Mr. Varley received his J. D. from theUniversity of Alabama School of Law, where he served as the Research Editor for both the Alabama LawReview and the Alabama Law & Psychology Review. Mr. Varley is the author of a comment on the AlabamaYouthful Offender Act, 28 Ala. L. Rev. 481-525 (1976). Following law school, Mr. Varley served as a law clerkto the Honorable Sam C. Pointer, Jr., Chief Judge of the United States District Court for the Northern Districtof Alabama. Mr. Varley was employed for nearly fifteen years as an attorney with the Legal Services Corpo-ration of Alabama, Inc., where he specialized in litigation and gained particular experience and notoriety han-dling civil rights and other class action cases. Mr. Varley is admitted to practice before the United States Dis-trict Courts for the Northern, Middle and Southern Districts of Alabama, the Fifth and Eleventh Circuit Courtsof Appeals and the United States Supreme Court, and has appeared in cases before each of these courts. Mr.Varley has also appeared as counsel of record in over thirty reported cases.

Henry H. Wallace of Wallace & Associates is a trial attorney with a national practice. He representscatastrophically injured plaintiffs and has had awards in the 5 million dollar area and verdicts in jurisdictionssuch as Ohio, Pennsylvania, New Jersey, Virginia, Alaska, Florida and California. Mr. Wallace is a certifiedspecialist in civil litigation by the National Board of Trial Advocacy. He lectures nationally. Mr. Wallaceaccepts cases on a referral basis and can be reached at (412) 391-6666.

J. Ray Warren is a member of the Alabama State Bar and is Claims Manager with the Division of RiskManagement, State of Alabama. He obtained his LLB degree from Jones School of Law, Montgomery,Alabama. Prior to his current position, he engaged in a successful plaintiff law practice with the Veigas LawGroup, representing clients in personal injury and workers’ compensation claims. Additionally, he workedover 27 years with State Farm Mutual, the last 15 years as an automobile claim superintendent. Mr. Warrenis a Chartered Property and Casualty Underwriter (CPCU), a retired colonel (Alabama Army NationalGuard) and has served as Chairman of the Alabama Ethics Commission. He can be reached at P.O. Box230245, Montgomery, AL 36123-0245.

R. Randy Wertz is a partner with the San Francisco law firm of Dryden, Margoles, Schimaneck, Hartman& Kelly. He is a trial attorney specializing in insurance defense and products liability. Mr. Wertz is a memberof the San Francisco Bar Association and the San Francisco Trial Lawyers Association. He may be contactedat (415) 352-6715.

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Michael L. Wetzel of Wetzel & Associates in Stone Mountain, Georgia concentrates on insurance relatedlitigation and personal injury cases. He can be reached at P. O. Box 871049, Stone Mountain, Georgia30087-0027, (770) 879-9618.

Jerry D. White is Executive Vice President and CEO of Los Angeles Mutual Insurance Adjusters. He holdsa Juris Doctor from Pacific Coast University School of Law. Mr. White has been qualified as an expert witnessin both property and casualty claims in superior court and has testified in both plaintiff and defense cases onthe customs and practices of insurance claims adjusting.

Alan J. Winters, M.D., J.D., has a private law practice specializing in medical negligence and personal injurylitigation. He has been a medical-legal consultant since 1979. He received his M.D. from State University of NewYork and his J.D. from the University of Houston. Dr. Winters has held numerous teaching positions inobstetrics and gynecology and was a United States Air Force Physician in obstetrics and gynecology. Hewas also a private practitioner in obstetrics and gynecology from 1979 to 1986. He has presented severalpapers at medical symposia and has had numerous articles published in medical journals, including the Journalof the American Medical Association, Gynecological Investigation, the Journal of Steroid Biochemistry, andTexas Medicine. He is a member of several medical and legal organizations, including the American College ofObstetricians and Gynecologists (Fellow), the American College of Legal Medicine (Fellow), the HoustonMedical-Legal Society, the Texas Medical Association and the Texas Bar Association. Dr. Winters can bereached at 440 Louisiana, Suite 700, Houston, TX 77002; telephone number (713) 228-5353.

Charles E. Workman, M.D., is an orthopedic and hand surgeon. He has been the medical director of theKansas City Physician’s Clinic since its inception in 1980. He has been a staff member of Trinity LutheranHospital since 1962, and Associate Professor Emeritus in Orthopedics at the University of Missouri since1980. Dr. Workman is a consultant to numerous organizations and institutions, including the United StatesArmy and Marine Corps, the Railroad Retirement Board, the Universities of Kansas, Missouri, and Nevada,and a number of law firms and insurance companies. He is both an independent medical examiner and anexaminer for malpractice cases for the state of Kansas.

Dr. Workman is a member of numerous medical organizations, including the American and Missouri Med-ical Associations and the Missouri State Orthopaedic Society. He has given lectures on medical and legal top-ics to physicians and attorneys, and has had articles published in several journals, including the Journal ofModern Medicine, American Journal of Surgery, Journal of Clinical Orthopaedics and Related Research,Missouri Medicine, and California Medicine. Dr. Workman can be reached at the Kansas City Physicians’Clinic, Inc., 6609 Milhaven Drive, Mission, KS 66202; telephone numbers (800) 327-7826, (913) 722-1192.

David E. Young is an independent adjuster licensed to represent either the insurer or the insured. Hispractice is currently limited to adjustment of insurance claims on behalf of the insured. In addition to hiswork in his home state of Arizona, he has served as an appraiser in Utah and California.

Mr. Young is a Senior Partner with the public adjusting firm of Brown-O’Haver Loss Claims Repre-sentatives in Phoenix, Arizona. He graduated from Weber State College (now Weber State University) inOgden, Utah, with a degree in finance and has served in various capacities with public adjusting firms inseveral states.

He can be contacted at 5217 East Whitton Avenue, P.O. Box 80122, Phoenix, AZ 85060-0122; tele-phone (602) 952-9188.

F-59 (Rev. 18, 12/10)

ABOUT THE AUTHORS

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(Rev. 19, 1/12)

Contact us at (800) 440-4780 or www.jamespublishing.com

SUPPLEMENT EDITING BY DONNA COLE, ESQ.

PRODUCTION EDITING BY

LEANNE CAZARES AND AMANDA WINKLER

INSURANCE SETTLEMENTS

RONALD V. MILLER, JR. KEVIN M. QUINLEY

VOLUME 2

Copyright © 2012James Publishing, Inc.ISBN #0-938065-53-X

This publication is intended to provide accurate and authoritative information about the subject matter cov-ered. It is sold with the understanding that the publisher does not render legal, accounting, or other professionalservices. If legal advice or other expert assistance is required, seek the services of a competent professional.

Persons using this publication in dealing with specific legal matters should exercise their own independentjudgment and research original sources of authority and local court rules.

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First Edition, 8/90Revision 1, 1/92Revision 2, 3/93Revision 3, 1/94Revision 4, 12/94Revision 5, 12/95Revision 6, 12/96Revision 7, 3/98Revision 8, 11/98Revision 9, 12/99Revision 10, 10/00Revision 11, 11/01Revision 12, 11/02Revision 13, 6/04Revision 14, 7/05Revision 15, 10/06Revision 16, 6/08Revision 17, 10/09Revision 18, 12/10Revision 19, 1/12

F-2

Table of Contents

I. CLAIMS HANDLING

1. How Insurance Companies Process Claims2. The Claims Review Process: How to Win Claims and Influence Claims Adjusters3. Aspects of Claims Frequently Questioned by Adjusters3A. Spotting and Countering Adjuster “Dirty Tricks”4. Managing the Client’s Expectations

II. VALUING CLAIMS

5. How Insurance Companies Value Claims6. Determining and Proving Economic Damages7. [Reserved]8. How Reserves Are Established8A. Questions to Ask Insurance Experts9. Proving Pain and Suffering

10. Handling Preexisting and Subsequent Injuries11. Proving Hedonic Damages12. Using Experts in Valuing and Settling Claims12A. Harnessing the Internet as a Claim Evaluation and Settlement Tool12B. Using Focus Groups and Mock Trials as Tools for Personal Injury Claim Evaluation


13. Determining Coverage and Obtaining Policy Limits13A. Questions to Assess Coverage Problems14. What to Do When Liability Is Denied14A. Homeowner's Insurance Coverage for Mold Claims


15. Drafting Effective Demand Letters and Settlement Brochures16. What Adjusters Need to Settle Claims17. Chiropractic Treatment in Soft Tissue Injury Cases18. Attorneys’ Guide to Medical Records18A. Countering Defense Independent Medical Examinations19. Common Mistakes Made by Plaintiffs’ Attorneys in Documenting Claims20. Analyzing Opinion Letters: A Physician’s Insights on the Quality of Medical Reports

F-3 (Rev. 19, 1/12)


21. Negotiating Insurance Claims 22. Establishing Bad Faith23. How to Negotiate With Insurance Companies and Avoid Settlement Delays24. Maximizing Damages in Small Personal Injury Cases25. Twenty-Six Tips From Seasoned Claims Adjusters25A. Mediation Tips for Personal Injury Counsel


26. Evaluating Settlement Offers26A. Settlement Ethics27. Structured Settlements: Opportunities, Problems and Benefits28. Appraisal of Insurance Claims29. Solving Common Settlement Problems29A. Handling Inflated and Other Liens


30. Evaluation of Soft Tissue Injury Claims31. Evaluating and Settling Medical Malpractice Claims31A. Investigating Cell Phone Use in Vehicle Liability Claim Recoveries32. Settling Auto Accident Cases33. Avoiding and Resolving the Classically Weak Case34. Trauma & Post Traumatic Stress Disorder (PTSD): A Brief Primer for Civil Litigation35. Stacking Un/Underinsured Motorist Coverages35A. Investigating Slip and Fall Claims36. Investigating and Litigating Nursing Home Abuse37. Investigating and Evaluating the Product Liability Claim38. Investigating False Arrest Claims39. Investigating Negligent Security Claims in Pursuing Damages for Crime Victims40. Investigating Workplace Violence Claims41. Sexual Molestation Claims: Liability and Coverage Issues42. How to Combat Smaller and Smaller Settlement Offers in Minor Impact Soft Tissue Injury Cases

For a detailed Table of Contents, please see Volume 1.

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