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DISCOVERY IN A COVERAGE CASE Michael J. Mohlman

Smith Coonrod Mohlman, LLC 7001 W. 79th Street Overland Park, KS 66204

Telephone: (913) 495-9965; Facsimile: (913) 894-1686 mike@smithcoonrod.com

www.smithcoonrod.com A. Pre-Suit Discovery for the Plaintiff

This topic is addressed in section A (Initial Investigation of Facts and Documents) of the materials on Negotiating a Settlement with the Insurance Company.

B. Discovery in Litigation

Once you have decided to file suit, you must continue aggressive discovery on an expanded basis. In suit, you obviously have the benefit of the discovery rules and

subpoena power to get some the information you could not access before. 1. Rules of the Road

The overarching theme in discovery when suing an insurance company should be whether or not the company followed the “Rules of the Road.” In this context, the Rules of the Road are accepted industry standards and practices that must be followed on every occasion. The Rules of the Road concept discussed in this paper largely comes from the book Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability by Rick

Friedman and Patrick Malone.

Friedman and Malone argue that defendants in complex cases wield three potent weapons: complexity, confusion and ambiguity. This complexity and ambiguity can be seen in the standards used in insurance cases. Most jurors are simply not sophisticated enough on their own to know whether an insurance company acted in “bad faith” or “without just cause or excuse.” To the lawyer, this means the insurer must have acted reasonably. To the lay person, “reasonable” has little meaning.

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When a jury is asked to apply an ambiguous standard, two things happen. The jury either makes up its own definition or chooses not to act. Both situations favor the defense.

To neutralize this ambiguity, plaintiff’s attorneys need to show the jury that, in the legal context, a fair definition of “reasonable” is “conforming with established standards or rules.” The attorney must then pour content into those rules. A defined standard is no longer ambiguous and it is markedly easier to explain to a jury how a defined standard was violated.

To be effective, a rule must be (1) easy to understand;

(2) a principle that is not easily disputed; (3) violated by the defendant; and

(4) important enough to the case that a violation will significantly increase the chance of a plaintiff’s verdict.

Rules can come from anywhere so long as they meet the above requirements. Good places to start looking are:

• Statutes and Regulations • Case law

• The Insurance Policy • Court rulings in the case • Jury instructions

• Expert testimony (both plaintiff and defendant) • Witness testimony

• Policy and procedure manuals • Training manuals

• Quality control procedures and operation manuals • Admissions in pleadings

• Admissions in discovery • Treatises and journal articles

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• Industry guidelines • Mission statements

• Common sense/moral imperative.

One of the most fertile places to look for Rules in an insurance case would be Statutes and Regulations. RSMo. § 375.1007, for example, governs improper claims practices:

Any of the following acts by an insurer, if committed in violation of section 375.1005, constitutes an improper claims practice:

(1) Misrepresenting to claimants and insureds relevant facts or policy provisions relating to coverages at issue;

(2) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies; (3) Failing to adopt and implement reasonable standards for the

prompt investigation and settlement of claims arising under its policies;

(4) Not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear;

(5) Compelling insureds or beneficiaries to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them; (6) Refusing to pay claims without conducting a reasonable

investigation;

(7) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed and communicated to the insurer;

(8) Attempting to settle a claim for less than the amount to which a reasonable person would believe the insured or beneficiary was

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entitled by reference to written or printed advertising material accompanying or made part of an application;

(9) Attempting to settle claims on the basis of an application which was materially altered without notice to, or knowledge or consent of, the insured;

(10) Making a claims payment to an insured or beneficiary without indicating the coverage under which each payment is being made;

(11) Unreasonably delaying the investigation or payment of claims by requiring both a formal proof of loss form and subsequent

verification that would result in duplication of information and verification appearing in the formal proof of loss form;

(12) Failing in the case of claims denial or offers of a compromise settlement to promptly provide a reasonable and accurate explanation of the basis for such actions;

(13) Failing to provide forms necessary to present claims within fifteen calendar days of a request with reasonable explanations regarding their use;

(14) Failing to adopt and implement reasonable standards to assure that the repairs of a repairer owned by or required to be used by the insurer are performed in a workmanlike manner;

(15) Failing to promptly settle claims where liability has become reasonably clear under one portion of the insurance policy

coverage in order to influence settlements under other portions of the insurance policy coverage.

RSMo. § 375.1007

In addition, Missouri Regulations govern what must be maintained in a claims file and how quickly a carrier must investigate a claim. A claim file “shall be maintained so as to show clearly the inception, handling, and disposition of each claim. The claim

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file(s) shall be sufficiently clear and specific so that pertinent events and dates of these events can be reconstructed.” 20 C.S.R. 100-8.040(B)(3). Among other things, the claims file must contain the contract and declaration pages, the insurer’s work papers, written communications, any documented or recorded telephone communication related to the handling, investigation, payment or denial of the claim and any claim manuals or other information necessary for reviewing the claim.

In a third party case, an insurer “shall complete an investigation of a claim within thirty (30) days after notification of the claim, unless the investigation cannot reasonably be completed within this time.” 20 C.S.R. 100-1.050(4). In a first party case, the insurer has only 15 days:

(A) Within fifteen (15) working days after the submission of all forms necessary to establish the nature and extent of any claim, the first-party claimant shall be advised of the acceptance or denial of the claim by the insurer.

. . . .

(C) If the insurer needs more time to determine whether a claim should be accepted or denied, it shall so notify the first-party claimant within the time otherwise allotted for acceptance or denial, giving the reasons more time is needed. If the investigation remains incomplete, the insurer, within fortyfive (45) days from the date of the initial notification and every forty-five (45) days after, shall send the claimant a letter setting forth the reasons additional time is needed for investigation.

20 CSR 100-1.050(1). Therefore, the claim that the carrier cannot respond within 30 days of a demand is not valid.

One you have compiled a list of Rules, keep an annotated copy handy for use throughout the case.

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• An insurance company must treat its policyholders interests in equal regard as it does its own interests. This is not an adversarial process;

• Part of an adjuster’s job is to assist the policyholder with the claim; • An insurance company must create and implement reasonable

standards for the prompt investigation of claims;

• An insurance company must thoroughly investigate the claim; • An insurance company must objectively investigate the claim; • An insurer has an obligation to recognize and promptly retain

independent and qualified experts to assist in the fair, reasonable, objective and prompt investigation of the claim;

• A failure to investigate does not permit the company to deny the claim due to a lack of information;

• An insurer cannot misrepresent facts or policy provisions;

• An insurer must communicate with its insured to keep it apprised of the status of claims;

• An insurer cannot tie claim payouts to an adjuster’s pay.

The annotations would simply be the Statute, Regulation, testimony, treatise or manual supporting each Rule.

2. Interrogatories and Requests for Production.

The basic discovery tools of interrogatories and requests for production of

documents are extremely useful in the early phase of these types of cases. Interrogatories are often most useful for identifying witnesses with knowledge regarding the facts of the case, protecting your flank against late disclosure or no disclosure of expert witnesses, and basic information as to documents may exist.

Requests for production of documents are a fertile area for discovering Rules because these are documents that come directly from the company itself. Requests should be written in plain English and should cover every conceivable area of documents that may be available.

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3. Requests for Admission

Requests for Admission should be used to pin down a defendant on the Rules that apply. Examples would be:

1. Please admit that, when it adjust claims originating from the State of Missouri, Acme Insurance is required to comply with all applicable provisions of R.S.Mo. § 375.1007.

2. Please admit that Acme Insurance trains its claims handler to comply with R.S.Mo. § 375.1007 when adjusting claims.

3. Please admit that Acme Insurance does not train its claims handler to comply with R.S.Mo. § 375.1007 when adjusting claims. Although most carriers will object to Request for Admission, a motion to compel will usually force them to provide an actual answer.

4. The Corporate Representative Deposition

A corporate representative deposition under 57.03(b)(4) is one of the most powerful tools a plaintiff’s attorney can wield. Rule 57.03(b)(4) provides the method for deposing an organization. When seeking to depose an organization, a party may be at a disadvantage due to the difficulty of knowing which natural person can speak for it. State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 606 (Mo. 2002). Rule 57.03(b)(4) puts organizations and natural persons on equal footing by requiring an organization to provide a person to offer testimony that binds the organization. Id.

When a corporation is presented a proper deposition notice under Rule

57.03(b)(4), it is obligated to designate a corporate representative to be deposed on each of the topics set forth in the notice. State ex rel. Plank v. Koehr, 831 S.W.2d 926, 928 (Mo. banc 1992). The deposition of a witness under Rule 57.03(b)(4) is not that of an individual but it is the deposition of the corporate defendant. Annin v. Bi-State Dev. Agency, 657 S.W.2d 382, 386 (Mo. App. E.D. 1983).

Admissions made in a corporate representative deposition are admissible against the corporate defendant as admissions by a party deponent. United Servs. of Am., Inc. v. Empire Bank of Springfield, Mo., 726 S.W.2d 439 (Mo. App. S.D. 1987). This is true even

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though the corporate representative has no personal knowledge regarding the topics about which he testified. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 838-839 (Mo. App. E.D. 2005)

C. Identifying and Deposing Lay and Expert Witnesses 1. Your Experts

Finding a convincing expert can be difficult but is well worth the effort. Expert services abound, but experts that advertise or work with services are often open to impeachment on that issue.

Our first step in finding experts is to talk to other attorneys we respect. Other attorneys will be able to give us the unvarnished truth about experts they have used before. We will also comb a variety of resources. Verdict reports, legal publications and medical publications should provide some names of potential experts.

Some of the other sources we look to are: • Missouri Lawyers’ Weekly;

• www.aaj.org;

• MODL;

• Books and Articles on the topic at hand; • The MATA list serve;

• Trialsmith;

• www.verdictsearch.com;

Once you find several names, a quick Google search can likely provide an address and phone number.

When you have settled on a name, you should thoroughly investigate that person. There is no reason not to investigate your potential expert like you would an opposing expert. Review their CV, education and any articles they have written on the topic at hand. You should also get prior depositions from AAJ, MODL, DRI or Trialsmith. Talk to other attorneys that have worked with the expert. Run a criminal background check. Write to the expert’s state disciplinary board for information. Check to see if the expert has a website. Google them.

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Don’t be bashful about looking into these issues and asking hard questions. A good expert will charge a lot of money and should have no problem answering your inquiries.

You also need to use your expert to emphasize and hone your Rules. Early on have a thorough conversation with your expert on the fundamental principles of the applicable field and which basic principles the defendant violated. Make sure he agrees with the basic Rule of your case and show him the statutes, regulations, testimony and other documents supporting your Rules.

Push your on the sources of every principle they believe is violated. Push them to explain why a violation of that principle is important. Work to refine these principles into Rules that are: (1) easy to understand, (2) cannot be credibly disputed, (3) are violated by the defendant and (4) are important enough in the context of your case that violation will significantly increase the chance of a favorable verdict.

When your expert testifies, have them use their list of the Rules as an exhibit. Have them explain that each Rule is well recognized and not controversial. Have them explain the source and purpose of each Rule. And, finally, have them run through a chronology of the facts showing why and how these Rules were violated.

2. Opposing Experts

When deposing the opposing expert, never take the expert head on. You will almost always lose that battle because the expert, virtually by definition, knows more about the topic than you do. Instead find ways to attack the foundation of the expert’s opinions.

By attacking and weakening the foundation of the expert’s opinion, we allow the jury to conclude on its own that the expert’s opinions are not credible. Before attacking the foundation of defense expert foundations, however, we should use the expert to extract helpful concessions and admissions.

Even if experts deny that the carrier acted in bad faith, you may be able to get them to admit that the damages were extremely severe or that your client bears no fault in the underlying wreck.

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You will also want to cross the opposing expert on the Rules. Go through each principle one by one. If the expert agrees with the Rule, move on. If he disagrees, review your annotations and start digging. Ask if he is familiar with the statute or regulation? Ask if he knows that some of the defendant’s employees agreed that this principle is well-understood and accepted in the industry. Ask him, if the principle is wrong, how it should be expressed. If you can, get him to disagree with the rule. If he does this, he is disagreeing with your experts and, hopefully, the defendant’s own documents and personnel.

By approaching the expert in this fashion, and by using strong, solid Rules, you can undermine the opposing expert’s credibility.

References

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