Location, location, location: Using a claimant’s phone data to verify an alibi
Reviewing cellphone location data can be a critical investigative tool that can help substantiate an insured's alibi or expose a lie.
Consider the following hypothetical: An insured submits a claim for a fire under a homeowner’s policy. The fire department extinguished the fire relatively quickly and there was little damage. The insured submits a claim for the loss and, as the investigation develops, the claim triggers certain indicators that require additional information and further investigation.
The insured was the last to leave the home; the home was secure and no one else has a key. The insured’s whereabouts at the time of the fire are unclear. He initially claims he was out of town on a camping trip with his kids that night, then later admits it was a school night and his wife had the children. He now states he does not remember exactly what he was doing or where he was that night. More information comes in and more issues develop. It is a new policy, and the insured filed bankruptcy earlier this year but claims it was a minor misunderstanding.
The claim seems suspicious, but how do we get to the bottom of what really happened?
Smartphones as an investigative tool
Every claims professional and attorney who handles arson and fraud investigation knows this case — something smells fishy and the insured has an unverifiable alibi. You can request receipts and bank statements that show an insured’s whereabouts at and around the time of the fire. However, even time-stamped receipts can — at best — show when a purchase occurred, leaving gaps in time between purchases. Fortunately, cellphone location data is more accessible than ever, and reviewing that data during the insured’s examination under oath (EUO) can be a critical investigative tool that can help substantiate an alibi or expose a lie.
According to the Pew Research Center, 96% of Americans own cellphones and 81% own smartphones. Fans of police procedurals are likely familiar with “cell tower triangulation” — an old-school, relatively inaccurate method of developing a timeline of a cellphone’s location. This technique is still used in some applications, but modern smartphones with GPS capability can be tracked far more accurately. Smartphones connected to WiFi can be tracked more accurately still. There are a few ways to retrieve this information.
Often, location data can be obtained from a cellphone provider. Each will typically provide the requested information with a satisfactory authorization from the insured accompanying the request of raw data. Generally, this data must be interpreted by an expert (at significant expense). There are experts who have developed a cottage industry for “phone extractions,” in which a substantial amount of data can be obtained from a device. These techniques are extremely valuable, yet costly, so the company will have to decide whether to consult with such an expert.
An expert may not be needed in certain scenarios. For instance, incredibly detailed location data can be found on smartphones with up-to-the-minute information. All modern smartphones have the ability to register and store location data. Apple iPhones, for instance, have a feature called “significant locations,” which assembles a list of places the cellphone is located frequently or recently. Each visit to a “significant location” is time and date stamped. Apple uses this data to trigger certain calendar, reminder, map and photo features, but this data is also available under the “privacy” tab in the settings app. Similarly, Android devices and other smartphones with the Google Maps application store location data in a format that is easier to interpret. The phone’s location is displayed on a timeline, and the phone’s movement is traced on a map.
Using recorded statements and EUOs to acquire smartphone location data
The important consideration in these scenarios is how to request and obtain the information. If you have a cooperative insured, simply ask to see their cellphone location services during an in-person interview. While most people are hesitant to surrender their cellphone or location data, a cooperative insured will likely comply if you explain their cell location data is a quick, easy way to verify and document their alibi.
If an insurer hired an attorney to prepare a coverage opinion, the best course may be to obtain information about the phone during a recorded statement (phone number, whether they had the phone at the time of the loss, if they still have it) and leave it to the attorney to request it in an EUO notice and during the examination. Similarly, it is better to formally request the phone in an EUO when there is a suspicious loss or contentious insured.
The EUO notice should ask the insured to preserve all cellphone call data, text messages and application data, and ask them to bring their cellphone to the EUO. After they explain their alibi and verify the whereabouts of their cellphone at the pertinent time, ask them to provide their cellphone so you can access their location data. If they refuse, make sure to explain their duty to cooperate and the purpose for the data on the record — considering the importance and availability of this information, refusing to surrender cell location data could constitute a failure to cooperate or even concealment.
Some insureds, when confronted with the fact that their alibi is proven false, will claim they didn’t have their phone at the time of the loss. In some scenarios, this is facially suspicious as most people keep their cellphone with them at all times. Ask detailed questions about the phone’s whereabouts, who had the phone, where and when the phone was given to someone else, when and where the insured got the phone back and any other questions to nail down the insured’s narrative. Each fact they provide is another representation that can be proven or disproven with the phone location data or through other investigations.
While this information can be extremely valuable, it is important that you consider it in the context of the claim and your state’s law. It is also imperative to consider the technology’s limitations — for instance, some cellphone location data is only accurate to a certain distance and, therefore, the location data may not definitely prove the insured’s alibi or your defense. Further, it is certainly possible for a savvy insured to manipulate or alter the location data. If you suspect the insured has altered their phone data to conceal their whereabouts, it may be prudent to engage an expert that specializes in “phone extractions” as mentioned previously. Typically, they can obtain data from a cellphone even after it is deleted and sometimes attain phone data when the physical phone is missing or destroyed.
Conclusion
Cellphone location data is a constantly developing and improving source of information that can help you identify fraudulent claims, expedite payment of valid (but unusual) claims and save money across the board. In other words, it’s a tool you need in your toolbox.
Fred Ferrand (fred.ferrand@swiftcurrie.com) is a partner in the Atlanta office of Swift, Currie, McGhee & Hiers, LLP, defending clients in complex, high-stakes litigation matters related to insurance claims, products liability, contract issues and other commercial disputes.
Murray Flint (murray.flint@swiftcurrie.com) is an attorney in the Birmingham office of Swift, Currie, McGhee & Hiers, LLP. He handles arson and fraud claims, advises insurance carriers on coverage issues and defends companies both before and during civil litigation.
Brian Richardson (brian.richardson@swiftcurrie.com) is a partner in the Birmingham office of Swift, Currie, McGhee & Hiers, LLP. Richardson has a diverse practice that includes work in the firm’s arson and fraud, automobile litigation, bad faith litigation, commercial litigation, construction law, insurance coverage, property insurance and trucking litigation practice areas.s.
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