Litigating with insurers can be an endless game of chicken
Natural adversaries, insurance companies and plaintiffs attorneys appear stuck in a back and forth game.
Natural adversaries, insurance companies and plaintiffs attorneys appear stuck in an endless game of chicken.
And to succeed in that game, it helps to have a resume that is “somewhat convincing,” according to Ronald Weil of Miami firm Weil Snyder & Ravindran, which specializes in sex abuse lawsuits.
Insurers wrestle with so-called nuclear verdicts, which the industry describes as social inflation — runaway jury verdicts have been on the rise for 10 years.
But in Weil’s experience, insurers assessing liability tend to hold onto their money, allowing it to collect interest until the last moment.
“They’re very often not willing to resolve the case, as we put it, until we see the whites of their eyes, which is, ‘Suddenly, we’re going to trial,’” Weil said. “Then, a lot of these cases that we’re dealing with will settle up before trial.”
In some cases, Weil says insurance carriers have “dared” him to go to trial after refusing to settle despite vast amounts of coverage.
“In one case, we got a $12.5 million verdict where there was $6 million in coverage, and the insurance company hadn’t really done anything to resolve the case previously,” Weil said.
Insurers do their utmost to make litigating against them hard work, according to South Florida personal injury attorney Bryan Hofeld of Schlesinger Law Offices, which landed two of the highest premises liability and auto accident verdicts of 2019.
“They put up as many obstacles as they can and try their best to make sure if they can that you’re not successful, or to mitigate or to reduce their exposure to liability,” Hofeld said. “That is absolutely not an exaggeration when you’re talking about liability of insurance carriers.”
The best way to respond to that, in Hofeld’s experience, is to make it clear that a jury trial is a very real possibility.
“They’ve got to know that you are a lawyer who is perfectly willing and able to try your case if necessary,” Hofeld said. “Because at the end of the day, they know that they’re going to have to be reasonable and fair with you, otherwise they’re going to have to take on significant risk by going to trial, then they lose control of what happens, and it’s up to the jury.”
In the background, both sides avidly research one other, analyzing wins and losses in previous cases, according to Hofeld, who said it helps if insurers see you’re no stranger to the courtroom.
‘Sniff that out’
Atlanta attorney Andrew Rogers of Deitch & Rogers, who helped obtain a $60 million verdict for a girl sexually assaulted at a treatment center, has come to the same conclusion.
“Frankly, a law firm that has a proven track record of going to trial and holding defendants accountable, I think, get more serious consideration from the insurance companies,” Rogers said.
It’s important to establish that credibility, as it’s all about expressing confidence and an open mind, according to Weil.
“If you’re not willing to do that, then the insurance companies can sniff that out, and what you end up doing is compromising good claims because of the concern that maybe you’re not going to be able to deliver at trial,” Weil said.
Few attorneys are willing to admit which insurance companies they don’t like dealing with, noting that cordiality can vary depending on the skills of an individual adjuster.
But Weil says veteran-focused USI Insurance Services has often taken a fair approach to cases involving home insurance coverage over damage caused by cast iron pipes. It’s an issue, he says, insurers regularly fight, looking only to sections of their policy that say they don’t replace cast iron pipes and ignoring sections that provide coverage for everything else related to it.
“They do seem to take good care of their insured. They do seem to take a good hard look at things and try to take good care of their veterans,” Weil said. “USI did it right in a number of cases we had where they said, ‘Yeah, we cover this because: see this section of the policy.’”
There’s a common misconception that adjusters aren’t as sophisticated or experienced as the litigators they’re dealing with, according to insurance defense attorney James Hurley of Fowler White Burnett, who said the majority of claims handlers actually have law degrees, and many have experience in private practice.
“It’s not an ‘insurance mentality’ as the plaintiff’s lawyer might say,” Hurley said. “From my point of view, it makes it very easy for me to communicate with them on a serious basis.”
Heart and soul
Georgia attorney Alan Hamilton of Shiver Hamilton, which obtained two of the highest verdicts of 2019, says insurance companies usually do get it right, considering they make evaluations based on very broad data sets, but there are lessons to learn.
“I think, sometimes, not to paint with a broad brush or cast aspersions at any insurance company, but sometimes they tend to believe their evaluation sometimes to a fault,” Hamilton said. ”I can’t speak for all lawyers, but I think these days fewer and fewer lawyers really try cases frequently and are comfortable with that, and I think sometimes insurance companies get away with imposing their will on their opponents in terms of what the value of a case is.”
If an insurance company isn’t nimble in how it way evaluates a developing case, “it risks being wrong on occasion,” according to Hamilton.
Big verdicts don’t happen, in Weil’s view, unless someone made a mistake in judgment.
“Insurance companies maybe wait until too late in the process, where the lawyers and the clients have proven a case that’s ready to go to trial and, all of a sudden, the insurance company says, ‘Well, remember when you offered X dollars at the beginning of the case to resolve this?’ And they want to go back to the beginning when it’s well beyond timely,” he said.
Whatever side you’re on, Hurley said it’s hard to convey the “internal grief” that comes from losing unexpectedly, or unexpectedly big.
“You put your heart and soul into a trial,” Hurley said. “We’re not a hired person. We are part of the person we’re representing, and we know that what we do is going to impact their life, not just the insurance companies but their insureds as well. So when you lose a case like that, it’s devastating.”
But after every devastating result comes a useful examination period.
“They [insurers] want to learn the lessons,” Hurley said. “They are a business, and they want to learn how they avoid the losses, how they minimize the exposures going forward.”
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