How to Protect the Insured When the Insurance Policies Are Low and the Exposure Is Big
April 24, 2020
Imagine this hypothesis: you have recently received a new claim, it’s a “liability admitted” matter, there are large medical specials, a massive future life care plan, and a seemingly sympathetic plaintiff. Additionally, Plaintiff’s counsel is seeking a settlement amount in excess of the policy limits. In most circumstances, this demand would seem ridiculous because there are towers of insurance coverage protecting the company, the LLC, or the organization. Plaintiff’s alleged damages cannot possibly exceed the value of the insurance policies. But what happens if you are representing an individual? What happens if that individual is independently wealthy, and what if the limits MIGHT not be enough? The attorneys at Patton & Ryan know that research into the Plaintiff’s attorney you are dealing with is just as important as researching the claim itself; any claim can be handled effectively if both these principles are followed. However, in circumstances like the one in the hypothesis, ascertaining what Plaintiff’s counsel’s true intentions are takes on increased urgency and needs to be fleshed out as quickly as possible.
Recently, we were asked by a client to file our appearances in a matter in which there was potential for an excess verdict. In most situations Plaintiff attorneys will not waste their time trying to get blood from a stone. However, this time it was different. We were representing an independently wealthy insured in a case in which there seemed to be a realistic chance for an excess verdict. Plaintiff’s counsel’s stance at mediation was that maybe the mediator could talk him into talking the policy limits. All insurers are placed into situations daily in which they have to balance the paramount need to defend the interests of the insured and—at the same time—reach an equitable settlement.
Our research into this particular Plaintiff’s attorney consisted of watching his interviews, YouTube videos, reading his book, obtaining copies of his witness examinations, as well as his openings and closings from other cases. What we quickly realized was that this was this attorney’s modus operandi. Using scare strategies, coupled with questionable tactics at trial, this attorney would force the hand of insurers to pay out over what the true valuation of the case was. Now that we knew who we were dealing with, we were prepared to counter his tactics.
How do you counter these tactics? The question itself is more daunting and difficult than the process. After you have spent time, reviewing the situations in which your opponent has succeeded versus the instances in which they failed, it becomes readily apparent what are their strengths and weaknesses. This is a strategy that Patton & Ryan insists be used when handling all claims. However, in these situations when the limits are lower and the potential exposure is greater, this evaluation of the Plaintiff’s attorney needs to be completed sooner.
A policy demand can add additional stress to already stressful litigation, so it’s not hard to imagine what a demand in excess of the policy creates. Patton & Ryan has been placed in this situation many times and has always told our clients the same thing: Plaintiff is telling you one thing, but what does the evidence show? In this particular case, Plaintiff’s life care planner was alleging that Plaintiff needed around-the-clock care, that Plaintiff could not use his right shoulder anymore, and that Plaintiff could not taste or smell anymore. With facts like these and doctors to back up most of the allegations, it would seem that there was some veracity to Plaintiff’s allegations. However, we were in possession of surveillance which could neutralize much of Plaintiff’s allegations. We felt that with this information we could, at the very least, bring Plaintiff back to the negotiation table.
The stakes in litigations are always high, but situations where the insured could personally be impacted drive up these stakes. In these cases, protecting the insured is directly related to asking how much information do you know about the attorney? How much information do you know about their motives? And how much information do you truly have on the Plaintiff’s claims?