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CCarr
Canada
1200 Posts |
 Posted - 09/12/2002 : 09:59:48
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Huge difference - night and day - between an examination under oath, and that of a "usual" recorded statement.
"Statements", will get their due, in a chapter of my efforts. |
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rwbrooks
USA
3 Posts |
Posted - 09/12/2002 : 10:00:19
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I have been asked by a couple of carriers to sign ROR and denial letters. The letters were written by the carrier and printed on the vendor letterhead. Their reason for the adjuster's signature was the examiner was not licensed in the State. The vendor approved the process.
I have a question as to the content of the NW form. Most forms have space for the reason the NW is issued. It a specific reason necessary? I notice Jim Lakes form has no reason as to the coverage of loss. I like that form.
I have trouble stating the reason without it sounding like a denial? Can we include in the reason, that this adjuster has no authority as to coverage or denial of the claim?
Can we make a list of the most common wording used for reasons written in the NW form?
I had an assignment resently, a commercial policy with no extension of coverage for other structures. The policy covered the building, and yard fixtures but not other buildings. The property in question was separate patio structure with a concrete slab and roof strucure supported by columns. The cover was blown over by wind. The claim was denied by the carrier without an inspection based on the policy wording description of damages by the insured. The insured dispused the denial reasoning the patio cover was a yard fixture. I took a NW, reason in the form was "The policy definition of other structures and yard fixtures has not been determined. The final decision of policy coverage and claim payments, if any, is left with the company." Was this a good NW?
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CCarr
Canada
1200 Posts |
Posted - 09/12/2002 : 10:15:07
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I think someone should bring some clarity regarding "the" wording of a NW. Again, do you have state or regional varieties?
If you are using a NW with a space to enter your "reason(s)" for its' use, I would suggest the more generic the better.
In RWBrooks post, based only on what he has told us, I would have tended to enter ".... extent of coverage unknown ....".
Was his NW good? I don't know, because I have this lingering concern that perhaps there are a number of form varieties "floating around", that have been handed off as the one to use, but may have been altered to suit someone's need last year etc, for another type of specific issue.
I suggest the NW is a legal document, and should have standardized language, where tort law prevails.
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Jim Lakes
USA
37 Posts |
Posted - 09/12/2002 : 12:07:04
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Jim,
Not to try and sound too short, but polite, the biggest difference is that the recorded statement is taken by an adjuster over the phone, in many cases, and the statement under oath is before a court recorder, atty, and is a legal and binding document.
The recorded statement can and has been refuted and thrown out of court because the insured stated that they did not know that the information could be used against them in court. I truly believe that a recorded statement is useless except for a sociological wedge over the insured, whereas the statement under oath is and will stand up in a court of law.
I’m sure that there are legal minds here that can be more specific about the difference between the two.
Jim Lakes, RPA
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CCarr
Canada
1200 Posts |
Posted - 09/12/2002 : 12:30:01
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RS vs EUO, perhaps I should first caution that this is where jurisdictional differences may occur.
I was a staff adjuster when recorded statements first arrived at the branch I was at, about 1974. At that time, any statements required, were taken by staff field adjusters, and were done face to face, pen to pad.
The intent of the RS was for its use to be utilized by inside telephone adjusters. There was a prevailing attitude of intimidation - both for the ITA in its use (a major change always brings that) and perceived by the insured when told by the ITA there statement would be recorded; amplified by the clear and blunt opening remarks the ITA had to use to "introduce" the RS preamble.
The RS concept had a rocky start and a rocky evolution; and much for the reasons I see Jim Lakes has provided, lost its "acceptance and value" to the carrier circa 1979.
One day, while working in co-operation on a file with a Fire Marshall, in the field, about 1978, he said he was going to interview an insured and get a statement; and he walked away without a pad. I asked him if he wanted to use mine - he said no, and pulled out a microcassette recorder.
We chatted about that type of RS quite a bit later - and he convinced me that a "conversation" would flow much better and the "language" of the statement would clearly be that of the insured - a prime consideration in statement taking - especially if you ever get to a voir dire with it.
I immediately adopted that method for my statement taking for years after that. It drove the transcribing department crazy, but in addition to the above reasons, I found it allowed me to focus more on the material I wanted to cover and "listen" more to what I was hearing, instead of trying just to write it all down.
Of course, there is a legal preamble to follow to take that type or any type of recorded statement, as there is a legal preamble to end it. Then, if it is or becomes a "critical" statement, the transcribed version must be signed. Then, also, the microcassettes must be properly stored and logged, so as their authenticity and unaltered state remains above question; or so you hope.
Anytime, I felt there was a need for an EUO, or our lawyers suggested it - it was always something that was done by our lawyers at their offices. I have never heard of an adjuster taking an EUO from an insured, witness or otherwise - as per Jim Lakes comments, it is a legal document; with a formality of structure to it. |
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CCarr
Canada
1200 Posts |
Posted - 09/12/2002 : 12:42:29
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I should add, to minimize your notice of the "conflict" in my previous post; that my RS were taken face to face with an insured, witness or whoever.
History did illustrate that this method, versus the ITA sitting in the office and over a phone line with someone neither could see, was certainly much more conducive to successful RS taking.
The few times a statement gets itself into the litigation puddle, out of the hundreds that serve their purpose in contributing to a settlement short of litigation; the RS taken face to face, with the proper preamble and closing remarks; never lost its' shine at a voir dire - its' ultimate testing ground. |
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CCarr
Canada
1200 Posts |
Posted - 09/12/2002 : 12:46:26
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| Jim, your last request regarding a bit more discussion on an aspect of statements. Can I suggest that that will be dealt with in the "Fire Course", Section E (5)? |
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Darryl
USA
36 Posts |
Posted - 09/12/2002 : 13:07:11
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Jim
As usual I speak on behalf of myself only. In regards to what I would do, as a CAT manager, to the adjuster that bolts, as usual there would be many things to consider but for the purpose of the factual situation quoted. Initially nothing towards the adjuster. My first concern would be to get someone to the scene to properly handle the situation, even if it meant that someone being me. Second, I'd notify the carrier as soon as possible of the situation. Take your medicine, delaying only makes it worse. Third, I would investigate how the adjuster ended up with the claim, to try and make sure it didn't happen again. Lastly, depending on how and why it handled as it was I would try and instruct the adjuster on what should have been done and why. I have had both situations occur, where an adjuster didn't act and he should have and where an adjuster acted and shouldn't have. Often the latter is worse than the former.
In my former life as a multi line adjuster and in my current life as a member of cat claims related management I have seen this scenario play out. From personal experience our company has been hurt far worse by wrong action then inaction. This in no means is meant to tell an adjuster to 'bolt and run' if they are not familiar with the method for handling a particular type claim but only as a suggestion that a measured response should be taken based on fundamental claims handling practices. Remember a big claim is only a bunch of small claims in the same place.
Darryl |
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CCarr
Canada
1200 Posts |
Posted - 09/12/2002 : 16:48:56
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I enjoyed reading Darryl's comments. Anyway, recorded statements on other than fire losses - the carrier I was with didn't distinguish they requirement for a RS by peril, but more so by the "issue or feel for the new claim". In the ever present world of logs and lists, it was certainly the burglaries and thefts, that had the greatest proportion of RS taken by the ITAs.
Aside from property, the auto people were actually the heaviest users, as there were no "no fault" jurisdictions at the time, and people sure could ramble on about their accidents; and getting that bit of greater detail - for the "basic" non-injury fender benders, often did create a clearer picture for the ITAs to play with tort.
The intent was to capture on tape the insured explaining how the loss occured and what was damaged and to what extent, so later - months later - there would be less incidence of more items or damage being brought forth.
There were a good hand full of times over those years that an insured being told his statement was going to be recorded, and did we have his permission etc, would meekly say he was pretty busy at the time; and eventually time proved that that claim was never further pursued by that insured. Once we caught on to that, noticing a tiny trend, we would "task" assign that file to a field person to attend via a "cold call" during the "graveyard shift", to follow up on the issue in an apparent "helping manner" - and in each of those few cases we were told to forget it. With regards to the contents of this paragraph, undoubtedly, I feel the recorded statement machine paid for itself. |
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rwbrooks
USA
3 Posts |
Posted - 09/12/2002 : 22:53:33
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| Would the adjuster have support from SIU of the carrier? Can SIU be reached 24/7? |
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CCarr
Canada
1200 Posts |
Posted - 09/12/2002 : 23:12:52
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| Support or involvement of a carrier SIU department (if they have one) should not be anticipated at the early stage of events set in the scenario (i.e you basically just got there, or over the weekend). Additionally, they typically have no claims authority, just investigative authority. Equally, basically because of the above and the nature of their investigative work, they are not normally available 24/7. |
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Jim Lakes
USA
37 Posts |
Posted - 09/13/2002 : 00:46:56
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JIm,
You asked me to answer the same question posed to Darryl. I would love to say that I could add this or that but in all truth the best I can say is DITO, Darryl.
He answered as I would have.
Good Job Darryl, you saved me some typing and time.
Thanks,
Jim Lakes,RPA |
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Jim Lakes
USA
37 Posts |
Posted - 09/13/2002 : 18:15:16
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Jim and All,
Jim presents, as usual, a very good question. “What would I do if it were a weekend and I were the adjuster that had a fire that looked questionable with no way to get guidance from either the carrier or the IA manager and a storm is coming that could very well destroy the evidence?”
Number One and most of all, “Common Sense must prevail.”
If for instance, the insured did not and would not sign a Non-Waiver, such as the one I posted earlier, I would inform the insured that by not signing, any evidence lost in the approaching storm could very well do serious damage to the outcome of any consideration of the claim in part or in whole. I would not expound further to the insured the meaning of that statement except to say, it means what it says.
This statement does not imply any wrong doing, guilt or accusation of any kind toward or against the insured, as long as that is all that is said.
If the insured did sign a Non-Waiver, I would make the decision then and there to take any steps or means to protect the scene and use the available “C & O” expert to evaluate the loss, if I felt confident that the evidence would be lost before I could obtain authorization from the powers that be. If there was a way of protecting the evidence, I of course would take that step first to allow the carrier to make the call or call ever whom they prefer.
As a vendor and a claim manager, I would never fault an adjuster for “ADJUSTING” a claim and using his common sense. I may not like what he did or find fault with it in constructive criticism, but “attempting to do something right is far better than doing nothing at all,” in this scenario.
In a future post, I will point out some facts that I have run across over the years about “engineers/ C & O experts” and their calls. As we all know there are many of them, just as there are many Cat adjusters.
And Clayton, you are right, back when hand written statements were taken at the scene and we had the insured or claimant sign them, I feel that they were much more valid than the ones recorded like today. As I stated, I think they, statements, have a great effect on the future outcome of a loss when an insured starts changing and adding things that they did not talk about in the statement. It makes them think twice about it. Although I have been in litigation and had the court allow the person to change their story simply because they said, “I forgot.” I have never had the same thing happen though when it was a statement under oath.
Jim Lakes, RPA
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KileAnderson
USA
875 Posts |
Posted - 09/14/2002 : 12:46:20
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OK, I have a slightly related question but on a different subject.
In March of 2000 I purchased a laptop computer to use for work. I purchased the 2 year extended warranty from Phillips. It added two years beyond the manufacturers warranty. So my laptop should be covered until March of 2003. Recently I opened my laptop and the hinge pulled right out of the body of the computer. So now the right side of the screen is no longer attached to the computer and I have to jerry-rig it to be able to write this.
I called Phillips on the night of 9-11-02 at their 24 hour service line. I spoke with two gentlemen. The first one gave me a "claim" number and told me that the damage was covered. He then told me that he would have to transfer me to the tech support dept. to diagnose my problem even though he knew that they couldn't help me with a physical damage problem he said that it was just the procedure and it was all he could do. I was transfered to another gentleman who listened to my problem and also said that it would be covered and that someone would call me in a day or two to arrange the pick up of my computer.
That was Wednesday. I did not get a call on Thursday or Friday. I called back today and spoke with a barely literate young lady who told me the screen says that hinges are not covered. I asked where does it state that in my contract which I was holding in my hand. She put me on hold and 5 minutes later she told me to refer to section 8A. The contract that I am holding is not broken down into sections. So I asked her to read it to me. After painfully listening to her recite contract language that she could barely pronounce I could not find that language anywhere in the contract that I had signed. I asked her what form she was reading and she could not tell me. I asked her to inturpret what she had just read and tell me how hinges were not covered. She could not. I asked to speak to her supervisor. She put me on hold and came back in a few minutes and told me that hinges were a consumable and were not covered. I read the list of consumables from the contract which includes knobs, remotes, drums, or batteries. Nowhere does it say hinges and if hinges are considered a consumable wouldn't the whole computer then be considered a consumable? There was no supervisor there for me to speak to. She said I had to call back on Monday. I asked what time, she said, "anytime". I said so "If I call back at 12:01 a.m. Monday morning will there be a manager there for me to speak to?" Her reply was yes.
So here is the crux of my argument: Was estoppel created when the two gentleman I spoke with told me that my situation was covered? Alan, any ideas? |
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ALANJ
USA
159 Posts |
Posted - 09/14/2002 : 13:52:24
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Kile:
I think you have a great argument. Please refer to article 2 of the UCC. (Uniform Commercial Code)( Sale of Goods)( Breach of an expressed warranty) There are several points which deal with warranty. I think you will find the code even allows for attorney fees. Check your state code to be sure. |
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Non-Waivers and ROR's
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