Winter Subrogation

What are some common situations for subrogation in winter?  There are a few!

1.  Potholes

With the temperature fluctuating, our streets become riddled with potholes.  Driving over these can often cause significant damage to vehicles.  Who is responsible for maintaining roads?  It’s likely the city or municipality.  It is important to send notice to the city or municipality immediately after the damage occurs.  This is important for two reasons.  One is that the city will attempt to repair the pot hole, preventing further damage.  The other reason is that the notification for most cities is needed within 7-15 days if there’s any chance of subrogation recovery.  It is important to follow up on these notices, and to thoroughly document loss details.

2.  Snow Plows

Most often, when vehicles are parked on the side of a road, and a plow goes by after a heavy snow, there is a chance for damage to the parked vehicle.  Snow plows long gone though, right?  Maybe not.  Ensure that photos and a cause of the damage to the vehicle are documented as soon as possible.  If the damage is consistent with being hit by a plow, there is a chance of recovery.  Find out what time the damage occurred, if there were any other vehicles damaged, and who was responsible for the snow removal.  Not always easy, but worth a shot!

3.  Snow Birds

Lucky folks will get out of the snow for winter, and head south to the U.S.  Almost all states are tort for recovery.  This means that you go to the at-fault party for recovery of damage.  If one vehicle does not have collision coverage, that driver has to go directly to the other insurance company for their damage.  It’s important to ensure adequate reserving for these losses, as the at-fault company has an exposure to third party property damage, as well as injury claims.

The important keys for pursuing subrogation successfully is to recognize the opportunities early, and to get complete details of the loss, and documentation to support damage and payments.  Attempting recovery too late often leads to failure.

Guest Blogger – Police Reports: Investigative Linchpin or Adjuster Crutch?

Kevin Quinley
Quinley Risk Associates, LLP

We are pleased to introduce Kevin M. Quinley, our guest blogger.  He has a great blog on his own site, www.claimscoach.com, and has graciously allowed us to feature him as a guest blogger.  Kevin Quinley CPCU, ARM, AIC is the principal of Quinley Risk Associates LLC, a boutique claims consulting firm based in the Richmond, Virginia area. He provides his nationwide clientele with services related to claims training, productivity, litigation support and expert witness services. He is the author of 10 books and over 600 articles on various aspects of insurance, risk management, claims handling and litigation management. You can reach him at *protected email* or at his website, www.claimscoach.com.

Police Reports: Investigative Linchpin or Adjuster Crutch?

To what extent should an adjuster rely upon a police investigation? Should it substitute for the adjuster’s investigation or part of it? Or, should it simply augment the investigation but not be viewed as a substitute for it?

This issue arose recently in the context of a bad faith claim where I was engaged as an expert witness. The plaintiff/policyholder alleged, among other things, that the insurance carrier failed to conduct an adequate investigation. Part of the argument was that the insurance adjuster relied too much on the police investigation and did not do more in the way of taking a formal statement from the policyholder and interviewing witnesses.

The Police Report reflected the account of the incident (an alleged assault and battery) from the standpoint of the insured and of witnesses. There was no dispute about what happened in the incident itself. The coverage dispute pertained more to the policyholder’s intent and whether his actions triggered the “expected or intended” or the “willful and malicious” policy exclusions.

This raised the issue as to whether adjusters are obliged in every case to go beyond the Police Report or whether, in certain cases, the report can be the cornerstone of an adjuster’s investigation.

As new adjusters, we are often taught — rightly — to NOT view police reports as sacrosanct. Police Reports can contain errors, just as medical reports or even attorney reports can contain errors. Typically, police are not eyewitnesses to an accident or incident. Their reports will capture facts relevant to the breaking of laws and ordinances.

However, in some instances a Police Report might serve as the cornerstone of a claims investigation. This is not to say that the Police Report always constitutes the end-all and be-all of a claim investigation. It is not to say that the Police Report is necessarily the entirety of an adjuster’s investigation. However, there may be situations where there is no need for the adjuster to plow the same investigative ground that the police have tilled if the basic facts of a claim are not in dispute.

Consider a straightforward accident where Car  A rear-ends Car B.  No one disputes that, and it is reflected in the police report.  Is the adjuster still obliged to track down, identify and take statements from all witnesses? At some point, this appears to be overkill.

Unless the adjuster is on notice that the Police Report is in some way erroneous or disputed, and if nobody disputes the basic facts of a straightforward accident, there may be instances where the adjuster can rightly rely on a police investigation for the bulk of the fact-finding without being accused of laziness.

The overarching principle is that adjusters and insurance companies are obliged to conduct reasonable investigations. This is required in many state unfair claim practice statutes. It is also found in the NAIC Model Unfair Claim Practices Act. Of course, “reasonable” is not defined. There is no paint-by-numbers description of what goes into reasonable. The statutes do not delineate the components of a “reasonable” investigation. What is reasonable in terms of investigation must be determined by the particulars of each individual claim.

At one extreme, you have straightforward scenarios where it is undisputed that Car A rear-ended Car B. If the police report reflects that, both drivers agree and there is no evidence to the contrary, then perhaps the police report can serve as the cornerstone of the adjuster’s investigation.

At the other extreme are complex and disputed facts situations. These could include the Deepwater Horizon oil spill in the Gulf of Mexico or the Fukushima nuclear meltdown in Japan. Here, official reports might be taken with a grain of salt and should be the starting point, not the endpoint of an insurer’s investigation.

So, where do you stand on the issue?  Are there situations where the Police Report can substitute for a big chunk of the adjuster’s investigation, OR is the adjuster obligated to always go back over the features captured in the report? 

 

CIP Society GTA – Annual Fellows’ Golf Tournament

Another beautiful day to be golfing!  We really enjoyed this tournament was on Monday, June 11, 2012.

This year the CIP Society of the Insurance Institute were rewarded for moving their tournament from September to June with excellent weather. Wyndance Golf Club in Goodwood was the spectacular venue.

Cameron & Associates helped sponsor the event & Sharon Cameron ran the putting contest where players competed for Blue Jay tickets for an upcoming game. Jim, Brian and Derrick were joined by Scott Pidduck, now joining QBE as a professional indemnity underwriter. Our “Green” Team’s score of -10 did not carry the day but we finished tied for 3rd (4th by retrogression).

All proceeds from the Mulligans, putting contest and the raffle tickets went to the John E. Lowes Scholarship Fund.  This is a great cause, and we were very happy to be a part of the group supporting this through golf!

 

Derrick, Jim, Scott & Brian

Optional Accident Benefits Case

Each day we’re seeing more & more impacts on the claims process & findings due to the Ontario Statutory Accident Benefits Schedule change effective September 2010.

One of the implications for direct writers, agents & brokers is the additional optional benefits.  Each company has developed a strategy on how to offer these benefits & how to track a client’s acceptance or decline of these benefits.  The implications of how this is documented can have legal consequences, as demonstrated in the case Zefferino V. Monnex.  The reason that this case ultimately failed is because the client did not prove that she would have purchased these benefits, had they been adequately explained to her.

Thomson Rogers did a write-up on this case in their March issue of The Accident Benefits Reporter.

So, brokers, insurers & direct writers, continue to dot your i’s and cross your t’s!