We know that insurance claim professionals do not limit themselves to working strictly for insurers because many have consistent business working for self-insured (trucking) and other related entities, but how can any of them claim to be “impartial” and “disinterested”, or “without prejudice” when they rarely (if ever) provide services for the potential plaintiff outside of those clients? There’s nothing that says the related claim services being provided are always from the perspective of a defense, but when was the last time you met a claim professional who didn’t start off working for an insurer?
It simply cannot be that one party calls itself disinterested merely because it bills for services on an hourly basis.
Let’s propose that a claim services company is brought into litigation over a failure to support clear indemnity, bad faith, or otherwise. We’ll assume the company and/or claim professional is deposed about it’s “impartial” or other disclaimer phrasing, indicating a separation from their principal. Any example might read, “our report is based on facts known and produced without prejudice to the interested parties”, or a number of other similar examples.
If you’re not using some sort of disclaimer on their reports then you might want to re-consider involvement in the claim business. Your clients should have more respect for use of a reasonable disclaimer because this is an indication that you care about your own liability, which in turn shows you are capable of caring about their liability.
One large benefit to using this type of disclaimer is that under a claim of an error and omission against you, the plaintiff’s attorney will have a hard time inquiring into the details of that impartiality because it will inherently fall under trade secret protection, other laws of civil procedure, and rules of evidence. Using a disclaimer statement will “open the door” to questioning, but this can simply be cut off by exerting a trade-secret protection. This might change the scope of discovery if the cause of action bringing suit is brought forward under a discrimination or obvious lack of impartiality.
Even then, the foregoing example can be circumnavigated by a simple telephone call, in which an attorney’s investigator asks “do you provide services for potential plaintiff’s or non insurer damaged parties who’s claims were denied?” When the all too common answer of “no” comes around, then the insurance claim professional is essentially grid-locked into a problem where their “impartiality” (or whatever term they use) is now in question.
The foregoing example is the apex of this article. No claim professional can imply they are “impartial” or even use a similar disclaimer when their entire experience consists of working solely for insurance companies. A good claim professional needs to show some minor experience working “the other side of the fence”, because they are otherwise not acting in an impartial manner.
The experience of this writer is one which includes a wealth of services for insurers, but also services for manufacturers, exporters, consignees, homeowners, and other parties. Many readers will question the borderline issues of whether this is construed as legal representation or public adjusting, but where the service provider clearly displays an agreement this is a strict investigation intended for use at litigation or elsewhere, there should be no question the provider has made a clear and noticed effort to stay within his or her respective boundary. In addition, perspective clients should take note that such services are best provided where a clear understanding of the concerns which the insurer and claimant are subject to dealing with.
Examples of direct findings in relation to these services will be provided as they are received from entities offering that information, or when the author’s own examples are clearly settled and can be published.