Introduction: We’ve all experienced insurance company claims of comparative fault during negotiations. Why insurance companies raise the issue is simple: it is a leveraging or discounting tool (as if Robinson, caps, joint and several, etc. aren’t enough). Many of these claims are specious (The Sharpie) and can be removed, while others are more vexing and perhaps even permanent (The Tattoo).

This webinar will help you identify the scenarios where a flimsy claim of comparative negligence is raised, and practical and legal strategies for overcoming them. It will also discuss the thorny issue of dealing with legitimate claims of comparative negligence in discovery or trial.

1. BEFORE SUIT IS FILED

BOGUS CLAIMS OF COMPARATIVE FAULT (THE SHARPIE)



A. Low Limits Cases/Usually “Off The Shelf” Insurers



B. Motorcycle crash cases



C. PD cases



3901-1-07. Unfair trade practices



(C) Defined unfair practices

It shall be deemed an unfair or deceptive practice to commit or perform with such frequency as to indicate a general business practice any of the following:



(6) Not offering first party or third party claimants, or their authorized representatives who have made claims which are fair and reasonable and in which liability has become reasonably clear, amounts which are fair and reasonable as shown by the insurer's investigation of the claim, providing the amounts so offered are within policy limits and in accordance with the policy provisions;

(7) Compelling insureds to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them when such insureds have made claims for amounts reasonably similar to the amounts ultimately recovered;




2. AFTER SUIT



A. HOW DO YOU KILL IT?

1. Dig a bit deeper

• Police video example

• Independent Witnesses – you depose!!

• Preliminary Report From Expert



B. WHAT IF YOU CAN’T KILL THEM?

(THE “TATTOO”)



Ex: 5-10% contrib is no big deal, right?

WRONG!!



“Double Whammy” Effect: In cases of legitimate contrib, juries frequently return lower verdicts because they have wrongfully factored contrib into the damages/final number.



Translated: “We didn’t feel she was entitled to a lot of $$ because she was partially at fault.”



Ex: Jury returns a verdict of 70K on 30% contribution, thinking she’s entitled to 100K, but reduce it accordingly.



Net result: Your 71K verdict just got reduced to 49K.



That’s why you need to take claims of contrib seriously.



It’s like seeing one cockroach in your house.



Call the exterminator now!



3. THE TATTOO REMAINS

If you start to get the feeling after discovery that contrib is going to be an issue in your case, you need to start thinking about using it in Jiu-jitsu fashion re: subrogation!



Get adjuster/defense counsel to quantify it in writing.



Negotiations with subro carrier



“Bogus” or “in play”/”legit issue”

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On-Demand Programs

“Looking For Fault In All The Wrong Places (And What You Can Do About It)” (Credit: OH) Published on 2/28/2017

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