Entries Tagged 'Personal Injury' ↓

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 →

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 →

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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This is an article that Wyatt Pickett and I wrote a while ago. I think you’ll find it interesting…

At Cross Border Law, our practice focuses on complex multijurisdictional civil litigation that implicates interests on both sides of the U.S.-Canadian border.  Yet we’re often confronted with questions – either directly from potential clients, or from referring Canadian counsel — regarding cases that present more modest challenges.  For example, non-catastrophic personal injury claims arising out of auto accidents in the United States between a Canadian plaintiff and a U.S. defendant often pose straightforward litigation problems which don’t require specialized expertise in choice-of-law or forum non conveniens to resolve. The temptation to settle such cases on your own, without the assistance of U.S. counsel, can be compelling – and in certain cases, may be appropriate.  But if you’re going to try to resolve your client’s U.S. based personal injury matter short of filing a lawsuit, keep these four key points in mind:

1) Costs are not generally recoverable in U.S. jurisdictions – Of the 50 state jurisdictions in the U.S., only Alaska follows a modified version of the “costs to the victor” approach followed by the British Columbia Rules of Court.  In all other states, the plaintiff will generally be fronting his own costs for record production, expert witness fees, court reporters and the like.  Thus, if you’re going to attempt to prepare your client’s case for settlement, the key is to find ways to obtain essential evidence and expert reports in the most cost-effective manner possible.  If presented with a settlement offer, you must likewise consider the cost of bringing your BC-based medical experts and fact witnesses to the U.S. forum in the event that your client rejects settlement and proceeds with a lawsuit.  While there are occasional exceptions to the “no costs” regime, the simple fact is that many small to moderately sized cases may have legal merit, but are simply not financially feasible for a BC plaintiff to pursue. In some such cases, settlement may be your only realistic option.  In others, your jurisdiction may offer alternatives such as mandatory arbitration or “small claims” courts, where relaxed rules of evidence (such as limits on defence discovery, or easy introduction of testimony by telephone or written report) might be sufficient to make a claim feasible to litigate.
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Continuing on from where I left off in the last article “Canadian Client Injured in America“

All About UMP
Most importantly, you need to be mindful of the way that underinsurance (UMP) works for all BC residents.  You cannot settle a US action for policy limits without first obtaining ICBC’s consent; otherwise, you risk forfeiting your client’s entire UMP claim.

Every ICBC-licensed driver, member of the household of the licensed driver and occupants in his or her vehicle maintains CDN $1M UMP coverage, providing a social safety net for significant claims.  In reality, the various deductions for Canada Pension Plan, (un)-employment insurance and both public and private disability plans reduce UMP awards so drastically that they provide very little safety net for a catastrophically injured plaintiff.  Still, it represents a potential claim worth at least several hundred thousand dollars, and you certainly don’t want to face such a legal malpractice claim for preventing your client from being able to pursue it.
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Over the next couple of posts I’m going to include information from a recent presentation I gave at a Washington State Trial Lawyers Association (WSTLA) event – they are now called the Washington State Association for Justice (WSAJ).

There are reportedly more than 5,000 accidents per year for British Columbians outside of the Province, and I only have the capacity to handle half of them.

I’d expect that, in such cases, you’d find a Washington lawyer with whom to associate so that you could properly maximize your client’s entitlement. What is true in BC is equally true in Washington, that insurance adjusters are simply not going to settle claims for decent value unless and until counsel is able to demonstrate the ability to take a case to trial.
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