Today’s handouts: http://www.plrb.org/public2/BI-Handout.pdf http://www.plrb.org/public2/BI-PPT.pdf

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YOUR WEBINAR WILL BEGIN AT 11 A.M. CENTRAL TIME (NOON EASTERN)

Thanks to PLRB’s 2015 Online Education Sponsor

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Bodily Injury: Handling High-Value Claims

Moderated by: Scott Powell Vice President of Educational and Technical Services Property & Liability Resource Bureau

Produced by: Teresa Arnold, Tonda Lee, & Ransella Wagner Property & Liability Resource Bureau

Bodily Injury: Handling High-Value Claims

Bodily Injury: Handling High-Value Claims

DAN LONGO Senior Partner Murchison & Cumming, LLP

JAMES SHELLEY Director of Quality Assurance Liberty Mutual Insurance Company

1. Each program will last 60-75 minutes

2. Download the handouts:

http://www.plrb.org/public2/BI-

Handout.pdf

http://www.plrb.org/public2/BI-PPT.pdf

3. Use the “Questions” pane on the right to

provide comments or ask questions

4. All recorded webinars can be found on our

website http://www.plrb.org under “Online CE”

Ground Rules

Bodily Injury: Handling High-Value Claims

Presented by Dan Longo and James Shelley

Bios • James Shelley: Director of Quality Assurance/Manager

of Audit – Liberty Mutual Insurance Company

Education • Adelphi University, Garden City New York • Master of Business Administration, Spring 2012 • Concentration: Management • University at Albany, State University of New York • Bachelor of Science Business Administration and

Communications, May 2003 • Concentrations: Management/Marketing

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Bios • Dan Longo: Managing Partner, Murchison &

Cumming LLP Irvine, CA.

Education • Loyola Law School, Los Angeles , CA. • J.D. 1982 • University of Southern California • B.A. History 1978

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A Civil Action “It's like this. A dead plaintiff is rarely worth more than a

living severely-maimed plaintiff. However, if it's a long, slow, agonizing death as opposed to a quick drowning or car wreck, the value can rise considerably. A dead adult in his 20s is generally worth less than one who is middle aged. A dead woman less than a dead man. A single adult less than one who's married. Black less than white. Poor less than rich. The perfect victim is a white male professional, 40 years old, at the height of his earning power, struck down at his prime. And the most imperfect: well, in the calculus of personal injury law, a dead child is worth the least of all.” ~ Jan Schlichtmann (A Civil Action 1998)

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How many years of claims experience do you have?

A. 1 – 2 years B. 2 – 5 years C. 5 – 8 years D. 10 – 15 years E. 15 plus

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Initial Investigations

• Not all claims start out as high value or complicated claims

• An in-depth up front investigation can only help

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A Picture is worth 1,000 words

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Coverage & Liability

Detailed Statements

Policy Analysis

Definition of a covered person Excess or Catastrophe Coverage

Coverage Detailed Statements

Vehicle Photos

Scene Photos

Police Reports

Live Video Feeds/Tapes

Preservation of Evidence

Liability

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Expert Usage Early On • Depending on the initial accident facts a case may

warrant retaining an expert early on

1.

Accident Reconstructionist

2.

Independent Medical Doctor

3.

Surveillance

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Injury Investigations • Know the difference between an upfront high value

claim vs. one that develops

• Questions to Consider o What factors can determine your initial injury investigation strategy? o How often should you follow up on injuries? o What are my sources of injury information?

• Injury Investigations Impact on Reserving

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General Damages

Defined - monetary recovery (money won) in a claim for injuries suffered (such as pain, suffering, inability to perform certain functions).

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Special Damages Defined - damages claimed and/or awarded in

which there are out-of-pocket costs directly as the result of the breach of contract, negligence, or other wrongful act by the defendant. Special damages can include medical bills, repairs and replacement of property, loss of wages, and other damages which are not speculative or subjective. They are distinguished from general damages, in which there is no evidence of a specific dollar figure.

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Strategies for Breaking Down Demand Packages

Breakdown and Assess •Utilize Word, OneNote,

PPT •Organize by treatment

provider

Organize and Summarize •Discard duplicate records •Be short, concise, and

strategic

Determine Next Steps and Follow Up Items •What am I missing? •Do I have authorizations? •Does legal counsel need to

be involved?

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Tools To Aid Demand Package Assessment

• Medical Bill Review Software • Nurse Reviews • Independent Medical Doctor Reviews • Co-Workers • Management • Legal Partners

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Special Damages

Special Damages

Medical Bills

Lost Wages

Future Care

Know the Impact Of: • No Fault

States • Non PIP

Venues • Liens

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Additional Factors to Consider

Prior Loss History

Future Prognosis

Intangible Factors

Expert Witness Credibility

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Total Case Value – Bringing It All Together

Generals Specials Additional Factors

Full Case Value

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What types of negotiation strategies do you find

most effective?

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Common Types of High Value Claims

• Death/Disfigurement/Dismemberment • Surgeries

o Fusions and Discectomies o Arthroscopic Surgeries

• Open Fractures with and without Surgery • Significant Lost Wages • Head Injuries • Burns • RSD

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Negotiation Best Practices • Know your strengths

• Know your opponents strengths

• Be the expert

• Have a plan

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Negotiation Strategies for High Value Claims

In Person

Arbitration

Paced

Mediation

Via Defense Counsel

Leverage Agency

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Litigation and Handling High Value Claims

Presented by Dan Longo

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Have you handled a claim through verdict?

A. Yes

B. No

C. Attended trial but no verdict rendered

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Discovery • Request For Production of Documents • Contention Interrogatories • Requests For Admission • Videotape Depositions

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Pre-Trial Issues • Motions In Limine • Trial Brief • Preview issues for trial judge • Attack plaintiffs use of “Reptile Theory” • Lay groundwork for appeal • Out of court preparation such as mock trial or focus

groups

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Trial Activities • Voir Dire

• Opening Argument (Not Statement)

• Effective Use of Technology

• Cross Examination Techniques

• Closing Argument-The Wrap Up

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Venue and Opposing Counsel

• Jury Verdict Reports

• Talk To Your Colleagues

• Changing Demographics

• Judicial Hellholes

• Dealing With Top Notch Opposing Counsel

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Expert Witnesses • Is This A Case Where An Expert Is Really

Necessary?

• Selecting The Best Expert For The Case

• What Do You Expect The Expert To Do?

• Budgets and Reports

• Attacking Opposing Experts 32

Types Of Trials • Jury Trial vs. Court Trial (be careful what you wish

for)

• High-low floors and caps

• Admitting liability

• Bifurcation

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Case Pricing Exercise Please see handout

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Case Pricing Exercise

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Facts of Loss: • Intersection accident that occurred on October 1, 2012. • The intersection is controlled by stop signs in one

direction and no traffic controls in the other. • Your insured was proceeding through the intersection

and had the stop sign. • The claimant vehicle was proceeding with the right of

way. • Police responded to the scene along with an

ambulance. Both your insured and the claimant were transported to the hospital from the scene.

Case Pricing Exercise

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Vehicle Damage: • The insured’s vehicle is a 2009 Nissan Maxima and

sustained heavy front end damage. • The estimate came in at $8,980. • The claimants vehicle is a 2001 Chevy Impala. The

vehicle was deemed a total loss. Book value on the vehicle was $5,595

Case Pricing Exercise

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Claimant Profile: • The claimant is a 42 year old married male with

dependent age children. • The claimant is employed as a Police Officer

making $82,000 per year. • He was out of work for the following periods of

time: o 10/1/2012 – 1/30/2013 o 2/12/2013 – 5/12/2013 o 9/1/2013 – 12/31/2013 o 1/2/2014 - Returned to work full duty. Some noted restrictions but

all signs point to a full return to work and full duty.

Case Pricing Exercise

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Claimant’s Injuries: • Emergency Room 10/1/2012 – Noted complaints of full

body pain. All x-rays normal. Treated and released. Follow up with GP ASAP.

• MRI C-spine: Bulges with degeneration at C3-4, C4-5, and C5-6

• MRI L-spine: Herniation with impingement L4-5 • Needle EMG Upper: Normal • Needle EMG Lower: Radiculopathy L4-5 • Physical Therapy 10/8/2012 – 12/2013 • Epidural Steroid Injections 2/12/2013 & 4/12/2013 • Lumbar Discectomy 9/1/2013

Case Pricing Exercise

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Prior Loss History: • The claimant has one prior loss, which was a

workers’ compensation claim 2 years ago. • Indications are of a neck and back sprain/strain • Claimant indicated that MRIs were performed but

those medical records are either missing or not obtainable.

How much would you value this case for

settlement? A. $0 - $25k B. $25k - $50k C. $50k - $75k D. $75k - $150k E. $150k +

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What were some of the factors driving your

evaluation of this claim?

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Appeals • Make Your Record

• Make Your Record

• Make Your Record

• Testimony vs. Documentary Evidence

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In Conclusion

• Leverage your peers and colleagues

• Learn from previous experiences

• Case pricing and evaluation is an art not a science

• Put yourself in the best position possible to protect your policyholder and come to a fair and reasonable settlement

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