10/24/2022
GET IT IN WRITING!
An experienced Public Adjuster, Leland Coontz, within my network made a very good post today on this subject: https://www.facebook.com/.../permalink/5696189803780162/
One of the biggest hurdles that I see from a legal perspective in pursuing insurance carrier bad behavior (insurance bad faith) is that often there is no documented evidence supporting the bad faith claim. Often the "evidence" that policyholders, contractors, and public adjusters present to myself and other "bad faith" lawyers is HE-SAID-SHE-SAID.
Examples:
"The adjuster said [insert whatever sort of misrepresentation, or bad faith statement here] while at the initial inspection (or re-inspection)."
"The adjuster said [insert whatever sort of misrepresentation, or bad faith statement here] on a phone call."
The problem with these is that this type of "evidence" is excluded at trial - you cannot testify about what another person/party said to you. In other words what someone says to you is not actionable evidence. Now it may give us valuable information on where/what/how to investigate the claim and to focus on during discovery and deposition, but those statements, that you may have been told or heard, do not come in as trial evidence.
So what is one to do? GET IT IN WRITING!!!
Tips:
1) As often as possible, communicate with the insurance carrier and its representatives (adjusters, inspectors, consultants, etc.) IN WRITING.
2) Ask all of your important policy and claim related questions via email or other written correspondence and require that carrier response are also IN WRITING.
3) Follow-up any in-person or telephone conversations with an email to put the important aspects of the conversation, as you recall them, in writing and asking for carrier confirmation therefore, IN WRITING.
โข Example: "My recollection of our conversation during [insert date and type of conversation (inspection or phone call)] is that you represented X, Y, and Z about the [damages, policy, claim, estimate, scope of work, etc.]. Please confirm that my recollection is correct and please include your basis for making such representations."
โข Give them a chance to correct course, do the right thing, and resolve your claim in an expedient manner OR force them to double or triple down on the bad behavior IN WRITING.
โข It is very easy for an insurance carrier to claim that an isolated misrepresentation was made by mistake, and juries often are reluctant to hold a carrier accountable for a mistake. Thus it is important to point out the misrepresentation(s) IN WRITING and force the carrier and its representatives to address it (or ignore it - but you have given them an opportunity in writing to correct course).
โข This now creates a written record of the interaction, that can be used as trial evidence and provides us with a tangible document to develop specific deposition and trial testimony questions and makes it difficult for the carrier to claim that it was a mere "mistake."
4) Be mindful of your role (policy holder, contractor, public adjuster) and steer clear of engaging in conversations and or correspondence that are not permitted by unlicensed practice of law and unlicensed practice of public adjusting laws.
โข Contractors - stick to inquiries about [mis]representations about the observable damages, necessary repairs to restore the property related to the damages, and the costs required to make those repairs. Stay away from discussing the policy, law, or legal interpretation.
โข Public Adjusters - stay away from interpreting or advising about the law or legal interpretation.
โข Policyholders - you can discuss all topics and advocate on your own behalf, which is often assisted by and based on information that you have been provided by your contractor (scope of work and estimate for example). However, if you find you need assistance fighting for what you are owed under your policy, a qualified public adjuster and/or insurance claim dispute attorney can be immensely helpful.
While a carrier and/or its representatives may seem or appear to be working with you towards a resolution by trying to "talk" on the phone, be mindful that what they may really be doing, is making certain that their [mis]representations, in an effort to deny or underpay your claim, are made without a paper-trail.
GET IT IN WRITING!
