Written By: Joshua A. Golembe, Esq.
Nicklaus & Associates, P.A.
Coral Gables, Florida
Today many Claimants hire aggressive attorneys who make unreasonably high demands for big dollars in cases that have low, to no, liability. In turn, insurance providers are forced to spend a lot of time and money defending these low exposure claims.
The question is, “what are efficient and effective strategies for defending these claims?” The answer is simple, a strong pre-suit defense. Yet, this begs another question. What constitutes a strong pre-suit defense? Is it the claims representative calculating the cost of a defense budget versus a potential settlement amount analysis to determine a settlement range, and attempting to resolve the matter in pre-suit without defense counsel? Is it requesting documentation from Plaintiff’s counsel, sending that documentation to Defense counsel for legal evaluation and requesting a settlement range? Or does it include a short and simple denial of the claim and then wait for the lawsuit to be filed?
There is no set methodology or formula for dealing with these low exposure/high demand cases. Every law firm and client has its own specific way of dealing with aggressive attorneys in low liability cases. I am fairly certain that these firms and insurance carriers are wrinkling their eyebrows as they read this article. Therefore, this commentary is not so much about what must be done, but rather what should be done.
So what comes first? Usually, it’s a threat of litigation that generally comes in the form of a demand package advocating and revealing to you everything that your insured did wrong. The facts almost always portray the Plaintiff as a model citizen who was, for lack of a better word, victimized by your insured. These demand packages are generally supplemented with volumes of medical records (or maybe none), medical bills and pictures of injuries. Okay, now what is the next move? How can you help the insured and stop the aggressive claimant attorney in their tracks? The answer is obvious and simple; retain Defense counsel right away.
Why right away? Let’s use the difference between conviction rates of federal criminal prosecutions and state criminal prosecutions as an example. In Florida, the conviction rate for a federal crime is approximately 93%, as opposed to 59% for state crimes. One reason for this disparity is that federal prosecutors and their respective agents work together on the criminal investigation from its inception.
Similarly, the Plaintiff’s attorney and injured party have formed a relationship and have been working together before sending out a demand package or contacting the insurance company. Most likely, way before the insurance company has been contacted, the aggressive attorney has already discussed the facts of the case with the client, interviewed potential witnesses and obtained documentation from both medical and liability experts and has referred the Claimant to hand picked doctors for diagnosis and treatment. Defense counsel should be retained immediately to level the playing field. The worst decision is to retain counsel several months and/or years after learning of a potential suit after the Claimant attorney’s frustration has peaked. Bringing in Defense counsel quickly serves several purposes: (1) Protects the insured’s interest; (2) Allows the claims adjuster to work the new claim in conjunction with Defense counsel; (3) Enables the defense to conduct cost efficient pre-suit discovery to solidify future defenses; and (4) Provides an equalizer in the form of a member of the bar.
More importantly, once Defense counsel is retained, the course of the case is now changed. When a demand package is received from the Plaintiff’s attorney, they are on the offense. Many attorneys will assemble all of their one-sided information and documentation into one large demand package, attach an arbitrary demand deadline and justify the necessity of your “prompt” response in the guise of a usually inappropriate “bad faith” letter. Now is the time to put the aggressive attorney on the defense by accurately evaluating the demand package and requesting further documentation from the attorney and diffusing the “bad faith” assertions. These suggestions can of course be accomplished by a claims representative, and in the event that Defense counsel has not been retained, should be utilized. However, due to the voluminous caseloads that most claims representatives, and/or corporate counsel handle, (which can range from 150-200 cases, or more, per adjuster) back up is usually needed. Therefore, in the majority of low value/high demand cases, the inclusion of the Defense attorney affirms to Claimant’s counsel that the case is not just “one on the list,” but is important and warrants an aggressive defense.
Next, it is important to discuss some basic strategies to put the aggressive Claimant attorney on the defense. As stated above, the general demand letter is geared towards getting an insurance carrier to pay out quickly. Inherently, these letters are composed by depicting the insured as the villain and the injured party as the innocent victim. This is not acceptable! Most demand letters neither acknowledge nor discuss any of the defendant’s strong points against liability, do not include a full and unbiased evaluation, and do not make mention of any potential third-party defendants and/or co-defendants. How many times have you seen and/or heard the expression, “liability is clear?” Any attorney who does not discuss these points in their initial demand letter will have a difficult time proving a “bad faith” claim. Use this to your advantage. Many claims representatives will request additional documentation, but not to the extent necessary. Put pressure on the Claimant’s attorney to disclose any and all information relevant to your defense. Make them work! Follow-up!
Carefully examine the demand package and issue detailed correspondence requesting the information that has been excluded, particularly MRI’s and x-rays (not just the reports, but actual films). This information can include additional documentation from medical experts detailing injuries, other expert reports, employment records and pre-suit statements from the injured party. Remember, it is the Plaintiff’s burden of proof if a claim proceeds to litigation. Any information obtained early is beneficial, and the more information you obtain pre-suit, the better position you will be in if a lawsuit is filed. Moreover, by starting the investigation early you can limit discovery costs later. Use the pre-suit defense as a means of obtaining discovery from the Plaintiff. Also, put yourself in the role of the Plaintiff. Don’t just send a letter and casually wait for the attorney to respond. Provide the aggressive attorney with a reasonable deadline to respond and follow-up with written correspondence. In the event the aggressive attorney attempts to make a bad faith claim, use these letters to evidence how they slowed down your investigation and hindered your ability to provide a thorough evaluation of the claim.
Also, take this opportunity to begin formulating your defense. Most claims representatives have access to private investigators. This is the time to get them working. Even though you are not able to take depositions at this time, a private investigator should be utilized to locate important witnesses and obtain their statements. If the claim involves a motor vehicle accident, obtain statements from all of the witnesses listed on the accident report. Do not limit your investigators to surveillance detail only; actively use them to help build a defense. If surveillance is utilized, it needs to be carefully monitored. Remember, the aggressive attorney has already begun the process of conducting their own pre-suit discovery.
Now that some basic defense strategies have been put into place, it’s time to pursue the next step. At some point during the pre-suit investigation, settlement negotiations may normally arise. When dealing with the Claimant attorney, the settlement demand most probably will be for the policy limits or slightly below or just too high. How do you control an unreasonably high demand in a low liability case?
Unlike the world of sports, the best defense is a good offense. Use what you have learned in your pre-suit defense and share that information with the Claimant’s attorney. For example, if you have an expert that rendered a strong defense opinion, present this material. Remember, behind every attorney there is usually a client who has the vision of making a substantial amount of money from this claim. So, not only do you have to convince the attorney of the futility of this aspiration, you also have to indirectly convince his/her client. The lesson being, “Do not be afraid to share.” If the claim is not settled, or no offer is made at all, the aggressive attorney will most likely file a lawsuit, and this material may become discoverable. Anyway, if it is adverse, you do not give it up of course. Now, for all of the attorneys out there shouting, “What about attorney-client privilege?” Relax, you may be waiving a work-product privilege, but any information that is beneficial to the defense will most likely be disclosed at some point during discovery anyway. This is the time to share this information! Show the strength of your case to the opposing attorney and consequently that attorney will have to share the knowledge that the case is less than ideal with their client. Hopefully the lawyer already promised his client too much. Many make that mistake.
Once a thorough pre-suit investigation has been done, it is time to formulate an appropriate settlement range. Each party has an expectation about what the pre-suit settlement should be. Do not choose a settlement amount that you just assume the attorney will take or a “cost of defense” type of amount. The settlement range should take into consideration your entire pre-suit investigation, and evaluation, in order to make a strong yet realistic offer. Let the aggressive attorney know that you have done your homework and that your offer is firm. Then hold fast! Let it be understood that the case has been worked up properly, and even if they choose to file a lawsuit the numbers will not change. Be clear that even if the client refuses, the offer will remain the same throughout litigation.
Similar to a game of chess, each move needs to be carefully calculated. Submitting your offer early sets up the next crucial step in the event that the adverse attorney files a lawsuit. So, if a lawsuit has been filed, make an Offer of Judgment at the beginning of the litigation. Each state has its own laws and rules for offers of judgment, or proposals for settlement. In the State of Florida, it is codified in Florida Statute Section 769.79 and Florida Rule of Civil Procedure 1.442. Basically, it states that when a Defendant files an offer of judgment which is not accepted by the Plaintiff within thirty (30) days, and the Plaintiff recovers a judgment in an amount that is at least 25% less than the offer, the Defendant shall be entitled to recover reasonable attorney’s fees and costs incurred from the date of the offer. This usually ends up as a set-off to any judgment that qualifies because most Claimants do not have the funds to pay anyway. Therefore, given that a thorough pre-suit investigation has been done, and a realistic pre-suit offer has been made, file an offer of judgment immediately (of course take into consideration when the rules of procedure in the applicable state permit). The aggressive attorney should be aware of the fact that if they recover less than 25% of your offer, they will be on the hook for all of your costs and fees from the date the offer expires.
Again, most readers are probably thinking that insurance companies, et al., already know how to manage these types of cases and that offers of judgment are utilized often. The lesson learned is to not delay filing until the Offer of Judgment until you have been litigating for months, or even years. Do it early so it is effective, and when you win that summary judgment, or the case comes in at your evaluation, get your litigation expenses back!
These measures will most often allow for efficient and effective strategies for defending the low exposure/high demand case.