A few days ago President Barack Obama gave a much anticipated update on the issue of US Immigration Reform.

A great deal of support for President Obama, is said to have come from those that want to see this bill pushed through congress, and done so quickly.

President Obama hopes to have the US Immigration Reform policy to congress by the end of the year, though admitted that a serious debate on it likely wouldn’t occur until later in the year.

The implications of such a policy are far reaching and President Obama makes no claim that getting this through congress will be easy. Here’s what he had to say: Continue reading →

Some refer to firms like ours as “boutique”; others say “we specialize” in a certain area of the law.  The Law Society of British Columbia prohibits lawyers from advertising that they specialize, which implies a higher level of education or training.  They do permit lawyers to say that their practice is focused or limited to a specific area of the law.  The lawyers at our firm, Cross Border Law Corporation, are licensed to practice in both United States and Canada, which is unique, in and of itself.

But what truly sets us apart from other personal injury boutique firms is our commitment to Value, not Volume.  Ask a personal injury lawyer how many files he’s currently handling.  Is it 125?  Is it 200 or more?  So characterizes a “Volume” practice—sign up clients, the more the merrier; have a paralegal or non-paralegal “litigation manager” primarily responsible for the file; focus on settling—as quickly as possible—for whatever sum can be achieved with modest effort; next case. Continue reading →

The above article addresses ways to maximize claim value for smaller claims, where the difference between judgment value and settlement value is less than $20,000.  Bear in mind that few adjusters will settle claims for more than fifty cents on the dollar without at least the threat of litigation, so it’s important to know when to engage U.S. counsel to avoid leaving significant value on the table.

The following factors will significantly increase the value of a U.S. claim over a similar B.C. injury claim: Continue reading →

This is a continuation of the last post looking at Comparative Bad Faith Law in BC and Washington. We’ll now move onto the comparison with Besel v. Viking Insurance…

COMPARE  Besel v. Viking Insurance, 146 Wn.2d 730 (2002)

Basic facts:

D, insured by Viking, crashes his pickup truck and injures his passenger, Besel.  Viking did not respond to Besel’s phone calls and letters regarding settlement, and in fact lost the claims file at some point during negotiations, causing delay to the evaluation of the claim.  Besel provided clear evidence that his damages exceeded $200,000; D’s policy limit with Viking was for only $25,000.  Viking failed to respond to numerous offers from Besel to settle his claims for $25,000, and ultimately indicates its intent to defend the claim on issues of damages and comparative fault (despite the fact that no WA court has ever assigned more than 50% fault to the passenger in a vehicle driven by an intoxicated driver). Continue reading →

This will be a two part post. First an introduction will be provided and then the outline of Shea v. M.P.I.C., 55 B.C.L.R. (2d) 15 (1991). In the second part of this post (coming next week) a comparison will be made with Besel v. Viking Insurance, 146 Wn.2d 730 (2002) and then we’ll explore how the Washington Supreme Court held and the result.

Both British Columbia and Washington have recognized a cause of action for bad faith in the context of an insurer’s failure/refusal to settle a claim within policy limits once liability and damage in excess of limits has become reasonably clear.  Likewise, both jurisdictions recognize the right of an assignee (usually the tort plaintiff) to pursue a bad faith claim held by the tortfeasor against his insurer.

The typical approach involves an assignment of the defendant’s bad faith rights in exchange for an agreement by the plaintiff not to seek judgment amounts against the defendant’s personal assets in excess of the applicable insurance limits.

The difference in the approaches from the two jurisdictions, as you will see, lies in the fact that Washington’s more robust bad faith law provides claimants with a mechanism for obtaining an assignment of these rights through a consent judgment in lieu of trial, whereas the British Columbia approach offers no avenue for obtaining these rights until an excess tort judgment has been obtained at trial. Continue reading →

Question #1:
Is it possible to bring a bad faith claim for acts which are not specifically proscribed by the Washington Administrative Code?

ANSWER: Absolutely. The WAC’s only set minimum standards for insurer conduct, and compliance with the WAC’s alone does not guarantee an insurer has avoided a bad faith claim.  The duty to act in good faith is “fairly broad and may be breached by [a variety of] conduct short of intentional bad faith or fraud.”  See Truck Insurance Exchange v. Vanport Homes, Inc., 147 Wn.2d 751, 764, 58 P.3d 276 (2002).  The trier of fact – typically a jury – will be charged with determining if the questioned conduct rises to the level of bad faith.  See Kallveig, supra.

Question #2:
These standards seem pretty amorphous and plaintiff-friendly.  Is there any good news for insurers in the case law?
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This is a continuation from my last post on insurance bad faith in Washington and British Columbia

(11) Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring subsequent submissions which contain substantially the same information.

(12) 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.
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The Washington legislature vests the (elected) Washington State Insurance Commissioner with the authority to issue regulations identifying acts an insurer may commit which violate the duties of good faith and fair dealing.  The following acts have been specifically identified as such in the Washington Administrative Code with respect to the settlement of claims; other provisions address the handling of coverage disputes, resolution of first-party property damage claims, and other situations:

WAC 284-30-330   Specific unfair claims settlement practices defined. The following are hereby defined as unfair methods of competition and unfair or deceptive acts or practices in the business of insurance, specifically applicable to the settlement of claims:

(1) Misrepresenting pertinent facts or insurance policy provisions.

(2) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.

(3) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies.

(4) Refusing to pay claims without conducting a reasonable investigation.

(5) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed.

(6) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. In particular, this includes an obligation to effectuate prompt payment of property damage claims to innocent third parties in clear liability situations. If two or more insurers are involved, they should arrange to make such payment, leaving to themselves the burden of apportioning it.

(7) Compelling insureds to institute or submit to litigation, arbitration, or appraisal to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in such actions or proceedings.

(8) Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application.

(9) Making claims payments to insured’s or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made.

(10) Asserting to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration.

I’ll continue on with the next nine points in the next post. Stay tuned…

Here are the next 6 comments covering where we left off on the last article “12 COMMENTS ON COLOSSUS AND THE USE OF “ADJUSTING SOFTWARE” BY U.S. INSURERS”

7) Identify factors in history of treatment (meds, traction, MRI, injections) –  Adjusting software is generally equipped to consider the use of devices such as cervical collars and TENS units, as well as the use of trigger point injections and the duration/type of certain types of medications.  As with the treatment history, breaking these items out in a spreadsheet with clearly marked durations of use, supported by the records if possible, is the best approach.

8 ) Comparative jury verdicts irrelevant — The reason for this is that software was created, in large part, to reduce insurer payouts for non-pecs, which were often calculated as a rough multiple of treatment expenses.  Under a Colossus-type regime, the software analyses type and duration of treatment to determine how much to offer…typically, medical expenses don’t factor into the equation of determining what the non-pec authority will be.
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Beginning in the early to mid 1990’s, many insurers in the United States began using computerized claims adjusting software to assist them in keeping payouts on small to moderate personal injury claims more modest.  CSC Corporation’s Colossus program was the best-known, and most widely discussed, of the claim adjusting programs – but while some companies may use or have used other software, the principle behind the process is fundamentally similar regardless of the program used.

The program’s purpose is to provide the insurance adjuster with a range of authority for non-pecuniary damage awards based on the severity of injuries and treatment history entered into the program’s matrix.  The adjuster inputs data from medical records, based on a coding system developed in conjunction with the software developer and the insurer.  The insurer can calibrate the program to be stingy or more generous with certain types of treatment, certain elements of damages, and the like – again, a process which is unique to every insurer who uses the program.  Once the data input is complete, the adjuster runs the program, and receives a range for what should be offered for the “pain & suffering” component of the claim.

Approximately two-thirds of U.S. insurers have utilized some type of claims adjusting software since the programs first gained wide acceptance in the early 1990’s.  Since the companies don’t widely advertise their use of these programs (often out of fear of increased exposure to bad faith litigation), much of the evolving knowledge about “who’s using Colossus” and how it works is developed anecdotally, through discussion amongst plaintiff’s lawyers in each individual U.S. jurisdiction who pass along tibits gleaned from adjusters on their files, discovery in bad faith litigation which escaped protective orders, investor filings where the insurer may have “bragged” about using software to control claims costs and increase shareholder value, and the like.
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