In a recent meeting with a claims executive, I was a little taken aback when told that their company had decided to pull back on comparative negligence assessments. This carrier, a large global player, had historically done a great job improving liability outcomes.
As it turns out they were seeing an increase in third party DOI complaints about the very comparative negligence assessments we were discussing. So rather than focus on educating claimants and state regulators, they decided to pursue a different path. But at what expense?
Adjusters are fiduciaries of their insureds. They have an obligation to make the best financial decisions based on all facts present. Given that all but a handful of states have either modified or pure comparative negligence laws, shared liability should be a common element in many claims.
The concern I shared was of the bigger picture that could include a potential class action if word ever got out that a carrier was making decisions adverse to the insured for the benefit of the company. But beyond that what of the needless increase in other indemnity and expense costs?
Let’s take a look at a sample claim. The insured was making a left turn across two lanes of opposing traffic in Duval County, Florida. As they were completing their turn, they were hit in the right rear quarter panel by the claimant. The insured was cited for Failure to Yield ROW. The police report indicated that there was a witness who observed the claimant on their phone.
The initial handling adjuster called the insured and the claimant and accepted 100% liability within 24 hours. The police report had not yet been obtained, and the witness identified when the police report eventually arrived had not been called.
In the interim, the claimant had also retained an attorney for their alleged injuries. The duration of treatment was over one year, and the total meds incurred was over $40,000 dollars, not including the estimate for the surgical recommendation at L5-S1.
The injury adjuster took on the file with one hand tied behind their back due to the initial handler accepting full liability. This became an area of contention during negotiations as, by now, the witness had been contacted and confirmed the claimant cell phone usage. They also added that the claimant had sped up as the light turned yellow. A biomechanical engineer, examining the available evidence, concluded the same and based on the extent of physical damage estimated the claimant had also been exceeding the speed limit.
In this particular case the injury adjuster came to the right conclusion. The insured had made the left turn and had nearly cleared both lanes of traffic. The point of impact was to the insured right rear quarter panel. The claimant had the last clear chance, was speeding and inattentive. This is clearly a case where not only should the initial adjuster have asserted comparative, but they should have subrogated on behalf of their own insured. In the claim system the injury adjuster changed the liability assessment to 60% against the insured and 40% against the claimant.
The matter proceeded all the way through trial with the plaintiff attorney adamant that there was no fault on the part of their client, relying upon evidence that the insured received a citation. The asserted that the witness did not have a good vantage point and lacked the credentials to assess whether a vehicle was driving in excess of the posted speed limit.
Defense counsel did a solid job in presenting the facts, refuting the medical bills as unreasonable and the surgical recommendation as unnecessary, while pointing a substantial amount of blame on the plaintiff for their own negligence.
The jury ultimately rendered a decision on liability of 50/50. The medical bills that had been boarded were reduced to $20,000 dollars before the $10,000 PIP offset. There was an award of $5000 for the pain and suffering, with the final judgement being $7500 based upon the plaintiff’s own liability.
Expenses through trial were substantially more with $35,000 in defense fees and costs and $10,000 in expert fees and testimony costs, for a total of $45,000 dollars.
In retrospect this is a case that was mishandled from the start. The adjuster was rushing to move a file to closure rather than conducting a solid investigation, which would have led to a comparative assessment early on. By fighting this aspect of the claim and subrogating the claimant carrier for their fault, they would have put the injury adjuster in a much more favorable position to fight the claim, potentially limiting how aggressive the plaintiff attorney would have been when pursuing treatment.
Unfortunately, this scenario is not all that uncommon. In our closed file audits, we routinely find cases where subrogation was overlooked. In fact, in the majority of our biggest recoveries ever, files had been closed by adjusters with missed subrogation opportunities. In many of these files there were downstream implications, such as the above scenario, which ended up costing carriers a lot of time and money.
The benefit of a closed file audit can be tremendous in not only finding money, but in identifying internal trends within claims organizations. In my own organization I had retained SecondLook to do a closed file review. The significant amount of money they found was beneficial, but even more important were the trends that they uncovered that allowed us to dramatically improve our own claim operations.
While perfection may not be attainable, striving for it certainly results in excellence that insurers and insured’s alike.
Chris Tidball is an Executive Claims Consultant with SecondLook, a leading provider of subrogation services. He spent his career in various adjusting, management, and leadership roles with leading Top 10 insurers. Chris is the author of Re-Adjusted: 20 Essential Rules to Take Your Claims Organization from Ordinary to Extraordinary! He has written multiple other fiction and non-fiction works, as well as creating The Adjuster television series. He can be reached at firstname.lastname@example.org