A few quick disclaimers before we begin. First, this is not legal advice. These are my own experiences and opinions, so please don’t make any life altering decisions, take up an extreme sport for a hobby, buy any timeshare, or thumb your nose at your insurance company’s attorney on the information contained herein (Don’t do this one especially). Second, if you don’t hear from me for a while, just assume my attorney friends have killed me for publishing this – please send help.
To date, I have been somehow involved in dozens of claim lawsuits. However, to quote Tom Cruise in my favorite movie (“A Few Good Men”), I have still not had my “So this is what a courtroom looks like” moment. In the movie, Lieutenant Kaffee had just entered the not-guilty plea that would change his life. For the first time in his career, he had a case moving to trial. Rather than plea bargain and settle, he was prepared to stand and fight in front of a jury of his clients’ peers.
When I joined the insurance industry back in 2009, that is exactly how I thought it went. A guy (let’s call him Steve to protect my client) buys an insurance policy, and pays his dues for years as a loyal State Farm customer. Yeah State Farm, I see you! One day, a massive storm makes its way through the heart of metro Atlanta. Steve has catastrophic damage to his roof and the interior of his home. His less than good neighbor sends an adjuster out to assess the damage, and pays him precisely $0, calling the damage long term, and excluded from coverage as such. Because the roof is nearing the end of its expected lifetime, spot repairs are impossible – not to mention forbidden by code. What is Steve to do?
If you answered, “Find an insurance claims attorney, sue the insurance company, and let a jury nail them to the wall for screwing the little guy,” you aren’t alone. That was my answer, and because of it, I found my way into numerous suits against insurers. We won some, we lost some. The wins were generally worthwhile, and I can’t say any more because of a divisive little thing called a non-disclosure agreement that insurers slip into the settlement agreement for the whopping sum of $100. Sadly, they never want to keep the $100 and forego the NDA. Funny how that works. The losses? Shocking, generally. Like I said, we have never had a federal, state, or superior court case go to trial in my decade plus tenure. So how have we and our clients lost? Simple – motion games.
Now, if you don’t know what a motion for summary judgment or a motion to dismiss is, take some time to educate yourself, as this is not a legal primer on motion practice. However, this will be a primer on how some insurance companies are crooked and play games to miscarry justice, and some judges are unfortunately lazy enough to take the bait and dismiss a case. It will be a primer on how the system is rigged against you in many states. And most importantly, it will be a primer on what to do to avoid falling victim to a perfect-storm case that your insurer and a rogue judge very much want off the docket.
Everybody knows that when you file an insurance claim, you and your representation must make precise and truthful statements of fact. What happens if you deny something that you know to be actually true? Congratulations, you have just committed insurance fraud. That is justice, after all, right? Agreed. So wouldn’t it follow that insurance companies and their attorneys are held to the same standard of truthfulness when they are sued? While the answer should unambiguously be YES, it is not that simple. Sadly, insurers and their attorneys get away with outright lying by denying allegations they know to be true. Forget everything we know about perjury. Forget everything we know about fraud. If their lawyer lies on their behalf, good luck having their side of the table indicted. Remember – the deck is stacked against you if you want to sue your insurance company.
So what? Let’s just blitz our way through to trial, and let a jury give them the fate they deserve. Right? Not so fast! First there are six months of discovery, generally speaking. That is the period where they get to ask for documents and you have to produce them – and vice versa. Let’s hope they actually produce what they are required to produce, as opposed to objecting to it on a nonsensical basis or simply failing to acknowledge the existence of the email where the adjuster admits you are owed more than you were paid. Work product, right? (Facepalm). Part of discovery is depositions. As these insurance attorneys are paid hourly, most of the time they will milk every interaction for every minute. On simple matters, I have participated in depositions from 9:00 AM to well after 5:00 PM. I have been asked stupid questions like where the Georgia Insurance Commissioner went to school, or what his qualifications are to make the decisions he does. Are you fricking kidding me? Crooked old insurance defense attorneys (with teeth equally as crooked) have asked me leading, compound questions (both no-no’s), and have maliciously demanded a simple “Yes” or “No” answer when I provided a true and accurate answer – rather than falling into their traps. Now, I know not to fall into those traps, but do you? To make the deal even more bitter, remember that for every billable hour your insurance company is willing to hemorrhage to avoid paying you what you are owed, you will be on the hook for roughly the same amount unless you are lucky enough to find an attorney who works on contingency. Remember – the deck is stacked against you if you want to sue your insurance company.
So congratulations. You have made it through discovery! You finally get that trial by jury you have been waiting for, right? Never mind the fact that six months of discovery somehow has you close to a year out because space, time, and basic arithmetic work differently with our court system. Again, not so fast. Now, in our personal experience, the insurance company gets a chance to file their pre-trial motions. If they believed to have found even one nonsensical violation of procedure, or one seemingly insignificant way they believe the policy was violated, they have tried to trump that up and ask a judge to throw out the entire case on that simple basis. Forget justice, forget what policyholders are owed, forget letting a jury be trusted with the matter like a reasonable American would expect. A judge with a busy docket may just be willing to rob you of your day in court, because granting the insurer’s motion and letting you appeal seems like the path of least resistance that is worth taking. Remember – the deck is stacked against you if you want to sue your insurance company. (Before we go any further, if you are a judge reading this, this is not meant to be hostile or apathetic toward the judiciary. I have the highest respect for our governmental system. However, I have personally seen some lazy work from the bench that gave dishonest insurance companies the benefit of the doubt. I humbly and respectfully encourage you to be better than those judges, and give the people [for whom your public office exists to serve] their day in court.)
Assuming you’ve made it this far, you may just have won, or more than likely your insurance company just wants to settle. If you don’t have an attorney fee statute in your state, congratulations on spending tens of thousands of dollars, or 40% of the recovery on attorney fees. Shouldn’t your insurance company have to pay those? Yup! Do they have to? Nope, because the insurance lobby had a bigger budget than the “everyday American lobby” that doesn’t actually exist. Remember – the deck is stacked against you if you want to sue your insurance company.
The entire process I just described could very well bankrupt you, even if you end up winning your case! Suing your insurance company can be a lot like bringing a knife to a gun fight – regardless of how badass your attorney is. So what are you to do if you cannot convince your insurance company to pay your claim outside of court and you can’t afford to take them to court?! How do you flip the script on your insurance company, and be the one with the gun in the fight? That’s where we come in as your licensed public adjusters. Outside of court, problematic companies typically use staff adjusters tasked with protecting the insurance companies’ bottom line. A staff adjuster is an individual who doesn’t even hold their own insurance license, but work claims anyway – it’s a cost saving measure insurers often use to circumvent ethics and legality by hiring workers who only report to them, as opposed to a government agency like we do. Meanwhile, you will be well represented by a licensed adjuster who had to go to school and pass a rigorous state board exam. A good public adjuster will talk circles around an insurer’s staff adjuster, quoting policy and relevant rules and regulations governing the transaction. A great public adjuster will do all that AND bury them in mountains of procedure and paperwork, making your claim more time and expense to deny than it is worth. If worse comes to worst and you do have to file suit, we will be there to help walk you through properly documenting the matter for an attoreny to avoid the most costly pitfalls. By hiring our firm, you are sending in the “special forces” to win the war before a court battle even becomes a consideration. Remember – the deck is stacked against your insurance company when you hire Friedman and Associates as your public adjuster.