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Perspectives from an Insurance Claims Adjuster turned Accident and Disability Plaintiff Attorney, or, How to Deal with an Insurance Adjuster




by:
The Law Office of Paul J. Dombeck PLLC - Phoenix Office

 
March 9, 2012

Previously published on March 8, 2012

Part I: The Insurance Adjuster Profile:

Is there anything to learn beyond the generally understood notion that an insurance company wants to pay as little as possible on a claim while the Accident/Disability Plaintiff attorney wants to gain as much for his client as possible on that claim? Actually quite a bit!

I would first like to emphasize that having experienced the challenges and frustrations faced by both insurance adjuster and plaintiff attorney, particularly in their dealings with each other, that the intent of this article is not to demonize one or the other, but hopefully to foster a greater understanding and facilitate more amicable and less costly claim resolution for both sides.

First of all, let’s talk about the Insurance Adjuster. Drawing on my own experience as an insurance adjuster and as a supervisor managing insurance adjusters, I can offer the following answers to some questions that claimants and plaintiff attorneys might wonder about:

 
1) Is the insurance adjuster really trying to pay me as little as possible?

It is no surprise that the adjuster’s employer (Insurance Company) has a financial motive to pay less money to settle a claim. But what about the individual adjuster; does he/she delight in paying less money for your claim? Sometimes; it depends on the person. I remember some adjusters did seem to enjoy it, sometimes because the adjuster was just personally a not-so-nice person, but often also in the sense of achieving a ‘victory’ in saving the company money, a story of a job well done around the lunch table.

 
2) Is there a typical insurance adjuster profile ?

Yes and no. Adjusters come from widely varying backgrounds, most college-educated, yet diverse educational backgrounds. The prevailing sentiment among my adjuster co-workers was a sense of having taken a bit of a wrong turn in their career path. It’s a tough and often thankless job, so why be an adjuster after going to college? For one thing, though tough and thankless, it can actually be a decent job relatively speaking; decent pay and can be interesting if the adjuster has the right temperament for it: The adjuster must know some legal terminology, some medical terminology, have some investigative acumen, and a thick skin, yet the profession in most cases is not something an individual typically plans to enter. Of a certainty, at every insurance company I worked for, adjusters liked to compare notes about how exactly they wound up becoming an adjuster in contrast to what they actually went to college for. I remember with some amusement the only co-worker we knew who obtained a specialized degree in college specifically to become an adjuster, ...i.e., he actually planned to become an adjuster while still in college. He was the butt of a lot of jokes around the office.


3) Are adjusters themselves under stresses and pressures that influence their treatment of claimants and plaintiff attorneys?

Absolutely! There are monthly case opening and closing requirements, timely-contact requirements, a variety of competencies required in handling claims, plus frequent file reviews by supervisors. Add to this the experience of being ‘cut out’ in a significant way from the ‘big picture’, ...i.e., how and why a claim plays out from start to finish in the way it does. Specifically, many adjusters absorb a certain claim denial ‘zeal’ passed down from supervisors and other higher-ups as well as job training and the company culture, and yet many adjusters have also experienced that when applying those ‘lessons’, ....i.e., using that knowledge to ‘do battle’ with a claimant or plaintiff attorney, they then see their supervisor or some more senior adjuster take over as the claim moves closer to litigation; the adjuster then sees everything he/she thought he/she was told he/she needed to fight for tossed aside by supervisors, and more money paid out on the claim than he/she was told was acceptable. Then add to this the adjuster’s supervisor turning around and actually chastising the adjuster for allowing the claim to end in a lawsuit rather than the type of quick and cheap ‘closing’ that every insurance company’s really wants.

 
4) Is an insurance adjuster’s salary linked to successfully bringing about cheaper claim settlements?

There is no doubt that proof of such corporate practices have surfaced via documents that have come to light in court battles over claims and claim practices, particularly regarding long term disability claim denial methodology. I am happy to say that to my knowledge this did not happen at the automobile/accident claim insurance companies I worked for. There was nothing either in the way of written or oral directives that lower payments to claimants would be specifically tied to increases in adjusters’ salaries, although lower claim settlements could certainly earn an adjuster ‘non-official’ accolades. More likely an adjuster’s salary and annual raise depends upon his/her speed, skill, knowledge and judgment in adeptly and adroitly processing a large case-load, and certainly in being a ‘team player,’ getting along with co-worker’s and supervisors, ...i.e,. the typical qualities employers like to see.

 
5) How much is an adjuster influenced by claim-settlement corporate culture vis a vis his/her employer?

The overall claim department strategy often swings one way or the other, over time in a cycle....the CEO comes in and says ‘we’re paying out too much on claims, we’re now going to take more claims into litigation,’ or alternatively ‘we’re spending too much on litigation defense, let’s increase settlement authority and get more claims paid and closed’. What does ‘we’re going to fight more claims in litigation’ mean? To some degree it means the insurance company’s settlement offers may become even further away than usual from what
an arbitrator or jury would award.

 
6) Is my adjuster’s suspicion of me and/or my claim in any way justified?

Not all claims are legitimate or even meritorious. Every once in a while a claim will be outright fraud. Kudos to the adjuster who uncovers such a plot, righting a wrong while saving his employer money and gaining an accolade for him/herself come annual salary review. And rightfully so, the insurance company should not have to pay for fraud, nor policy holders the increased premiums sometimes charged to offset losses caused by pay-outs on fraudulent claims. On the other hand, however, certain adjusters may be overly attuned to the possibility of fraud, seeing the devil so to speak in the ordinary and legitimate claim.

 
7) The adjuster on my claim certainly seems to have a hard edge, why is this?

Certainly for a plaintiff attorney, you may notice that when you challenge an adjuster, they often cut you off mid-sentence and pepper you with alternative arguments no matter how weak. But why is this? From my own experience this can certainly be attributed to the sink or swim mentality of a generally tough job. Constantly arguing with Plaintiff attorneys, claimants and even your own supervisors often resulted in a hard edge in those adjusters with enough mettle to survive. Psychologically it is difficult for someone to be continuously challenged and often yelled at. You want to push back. So when the insurance company employer continuously trains the adjuster to make counter-arguments to claimants and plaintiff attorneys, this directive for the adjuster to ‘say something back’ to a challenger, easily becomes ‘say anything’ even if it is off-point, and as an adjuster if you are arguing with the facts or law against you, and/or an imperfect understanding of the facts/law, the tendency can become just to repeat your point louder. For an attorney listening to this, the adjuster often conveys ‘I know what I know, and I’m not going to listen to your arguments’; very frustrating for a Plaintiff attorney.

What the Plaintiff attorney who was never an adjuster cannot know is where this all came from: Adjusters typically hate plaintiff attorneys, why? Imagine a fresh-faced college kid coming to a new job, taught only an imperfect understanding of the application of law to facts, concepts which can only be absorbed over time by direct experience, getting yelled at by claimants who are constantly challenging his/her decisions, and add to this the experience of feeling totally trumped in an argument, often even yelled at, by a unkind plaintiff attorney on top of his game, shooting down every argument the adjuster has, in a resounding and humiliating fashion. And the attorney may have been correct about the argument. But then the adjuster instead hears from his/her supervisor, "you have to be tougher with these attorneys". That can be a very humbling and frustrating and not uncommon experience for an adjuster. The wariness from an adjuster’s perspective becomes ‘don’t let this attorney keep talking, it will not end well for me.’ And that often results in adjusters not even listening to a plaintiff attorney’s valid points, talking over even a patient and courteous plaintiff attorney, driving many plaintiff attorneys to simply file a lawsuit rather than putting up with the adjuster.

 
8) Are the things my adjuster tells me correct? he/she certainly sounds pretty confident:

As much as adjusters do know, which can be a lot, the category and scope of things adjusters do NOT know and/or have a limited understanding of is, frankly, amazing. And there are reasons for this. Examples can include legal doctrines such as ‘mitigation of damages’ and ‘thin-skull doctrine’, and certainly also calculation of self-employment earning, and concepts such as ‘apportionment versus exacerbation’ come to mind. And there are medical examples as well, often centering around the legally compensable value of injuries beyond those commonly seen whiplash cases in auto accident cases or the ‘objective’ versus ‘subjective’ substantiation of pain claims in disability cases.

Too often many adjusters know only enough of these concepts to apply them incorrectly. The biggest reason for this is that in application these are actually not simple concepts, many having been developed over years in the Courts, and not every adjuster has the acumen to usefully master concepts that even many law students leave school never fully grasping. As an adjuster I often had the sense that there should be an attorney directly in charge of every claims unit, but frankly that notion is in some sense trumped by the larger doctrinal goal of an insurance company; namely an entity run for profit gains by claim denial, and a claims unit that institutionally misapplies legal concepts to the overall end of paying less money on claims ultimately serves that corporate goal, so much the better if the adjusters handling the lion’s share of the claims are never really aware of the precise workings of why legally a greater amount should be paid for various components of the claims.

 Thus while an attorney in charge of every claims unit would undoubtably keep the adjusters and the company as a whole out of trouble in one sense, such a structure would likely result in somewhat larger overall claims payments in addition to paying the salaries of those attorneys.

 
9) Why is the adjuster taking so long with this claim?

Certainly the answer could be that the adjuster is overloaded with claims, or the company is experiencing an inordinate amount of organizational dysfunction. But another answer is that, not surprisingly, the more complex a claim is, the more likely many adjusters are to place it on the bottom of the pile. Such a practice may also be necessary for the adjuster to manage a huge caseload. And to some extent it is human nature to spend most of one’s time attending to the simpler and more voluminous tasks and procrastinating on the difficult ones; for an adjuster the simpler claims include things like whiplash injuries from simple rear-ender car crashes. Examples of claims an adjuster may find more complex: include: 1) Accidents causing a self-employed claimant to lose a substantial amount of wages; 2) Accidents causing less well-known types of injury, or 3) claims of permanent injuries.

 
10) Is the adjuster telling me the truth when he/she says that they tried but cannot get any more ‘authority’ to pay a bit more money to me on my claim?

Sometimes they are telling the truth, most likely they are not. The top ‘Authority’ level refers to how much the adjuster is permitted by their supervisor or the insurance company to settle your claim for. Quite often the adjuster presents you an opening settlement offer and makes it sound as if this is all the money that is or will be available, or alternatively that there may be a ‘little more’ available, and that is it. For a claimant unaccustomed to negotiation this may be daunting, while to claimants with some understanding of negotiation tactics, it may be frustrating, though not particularly surprising. I would not say that this tactic is always a ‘dirty trick’ by the insurance company. Frankly the ‘value’ of an accident claim is what an arbitrator or jury would pay, and the value of a contract-disability claim depends among other things upon actuarial survival/recovery potential, thus these values are never set in stone. There is room for reasonable disagreement.

 Realize that sometimes your adjuster may be telling you the truth when they say they simply have ‘no more authority’. This does not mean that the authority is not ‘out there somewhere’, someone higher up at the company simply needs to give the word. However the insurance adjuster on your claim may not be able to obtain even a little more authority on your claim even if they want to, usually because the adjuster’s supervisor has a belief that the claim is not worth the higher amount, or is in a bad mood that day, or has reached the point that they think the result may be better for the insurance company if claimant took the case into litigation, or is simply wrong about the value of the claim. This can be quite frustrating to the insurance adjuster who has monthly ‘claim closing’ goals to meet as part of their performance numbers, and just wishes their supervisor could kick in a few hundred more dollars to move another one to the ‘closed’ pile.

 
Conclusion

In conclusion to this first part of this article, focusing upon the claims adjuster, I would emphasize that the foregoing is of course based upon my own observations and experiences over ten years in the insurance industry, and thus I believe fairly representative of the profession. Nevertheless I have no doubt there is more to the story, including viewpoints and perspectives presenting alternative and/or differing aspects of the profession, and I would certainly welcome any input or feedback from anyone in the industry which I would be open to including in article updates.

We at the Law Office of Paul J. Dombeck, PLLC hope that this information proves useful to claimants navigating the insurance and legal worlds, and we are happy to talk with you about your claim. Contact us at 602-648-2035 or at www.disabiltyarizona.com or paul.dombeck@azbar.org

 

Part II: The Plaintiff (Injury - Disability) Attorney

As an adjuster turned Plaintiff attorney what can I say about Plaintiff attorneys? Let’s start by identifying the most plausible set of readers likely to come across this article: Think about it: neither Adjusters nor Plaintiff Attorneys are typically ‘Googling’ generalized information about the other profession, at best each has a working familiarity with the other profession, at worst, each is stuck in their own paradigm view of the other and not seeking greater knowledge and understanding. Additionally with the adjuster, remember that seeking the legally ‘reasonable’ claim outcome is seldom encouraged by the employer, who often takes a doctrinal approach to claim settlement methodology and results.

As an adjuster turned Plaintiff attorney what can I say about Plaintiff attorneys? Let’s start by identifying the most plausible set of readers likely to come across this article: Think about it: neither Adjusters nor Plaintiff Attorneys are typically ‘Googling’ generalized information about the other profession, at best each has a working familiarity with the other profession, at worst, each is stuck in their own paradigm view of the other and not seeking greater knowledge and understanding. Additionally with the adjuster, remember that seeking the legally ‘reasonable’ claim outcome is seldom encouraged by the employer, who often takes a doctrinal approach to claim settlement methodology and results.

So who would be searching for the information in this article? That’s right: claimants who are having a hard time with their insurance adjuster. So what can I tell such claimants about Plaintiff attorneys aside from the well-worn TV and billboard entreaties about the advantages of retaining an attorney as soon as possible after your auto accident or disability denial?

 The first thing I suppose is more personal. Namely, when I first became a plaintiff attorney, the shock of being on the receiving end of the tactics I had dished out for so many years as an insurance adjuster; moreover the frustration of realizing that despite my own years as an adjuster just how little I could really as a plaintiff attorney do to change the doctrinal nature of the adjuster’s approach to claim understanding and resolution.

 But on a positive note, based upon my adjuster experience, I have had as an attorney significant success resolving many claims without putting my clients through a lawsuit simply by having an enhanced understanding of what an adjuster may find to be compelling evidence, argument and/or otherwise helpful in obtaining more dollar authority to settle a claim. Or when that has not been possible, discerning an adjuster’s knowledge and/or authority limits, and comfortably proceeding with a lawsuit.

 1. Is my attorney doing everything he/she can to get the best results on my case?

Well remember first of all that your Plaintiff attorney is usually paid on a contingency percentage, so the greater the overall settlement number the more your attorney earns for his/her own fee portion in addition to obtaining a greater dollar number for you.

But are there factors that may alter that incentive: Absolutely: certainly a lazy or inexperienced attorney, or an attorney who is a poor negotiator may have a compromised approach to claim resolution.

Also problematic can be an attorney working for a law firm-employer that pressures that attorney to: 1) settle a certain number of claims and lawsuits without initiating litigation, and/or 2) manage a huge case-load...i.e., features that have sometimes been called a ‘Plaintiff Mill’ approach to Plaintiff-claim resolution. Or even a solo or small-firm practitioner who has too high of a case load. For attorneys that have worked in such settings, as I have, the inability to file the lawsuit that you know is warranted can be quite frustrating. Alternatively, the ability to file a warranted lawsuit, even where you know it may not result in a huge increase in the ultimate dollar outcome of the claim, can be very rewarding as you know you are doing the best job you can for your client, which reflects well on you and on the profession as a whole.

 
2. Is my attorney right for me?

Consider also that the attorney and his/her client may have or my develop some degree of dislike or mistrust of each other, which may prompt that attorney when weighing the balance of case factors to seek an earlier and cheaper end to the case than what might otherwise have been. Not a desirable circumstance for either the claimant-client or his/her attorney to find themselves in, though not necessarily as negative a case outcome as you might think. Consider the attorney may work harder and faster for a good result for such a client so that the two can more quickly and amicably part ways. And if this means the claimant and attorney agree to resolve the claim for a few dollars less so as to be more quickly done with the process and each other, in some respects that could be considered a ‘win-win’, considering the alternative might be attorney and client forced to closely work together on a long litigation process with an inherently uncertain outcome that nevertheless requires timely cooperation between attorney and client. Remember also that such an outcome would be even more accurately described as a ‘win-win-win’, in so far as the insurance company would certainly love to pay less on the claim.

 This negative relationship scenario happens to every attorney at least once. The best solution to this is that the attorney and client spend a reasonably adequate amount of time together during their initial meetings to become familiar with each other. This is not always possible in some larger busier law firms where the attorney may have only a limited initial face-time with new clients. As a smaller practitioner I have found it both essential and rewarding to spend a fair amount of time getting to know each client, and at the very least, enough time to develop some sense of whether we can work together as attorney-client.

A much more common roadblock to achieving the optimal claim resolution frequently proves to be client financial circumstances.


3. Clients under financial hardship

Accident Claimants and particularly Long Term Disability Claimant’s are often, not surprisingly, strapped for cash as they no longer have a job. Unless a claimant has a financially stable family situation to fall back on, the longer their claim remains unresolved, particularly litigated claims, the more such claimants’ expectations of what an ‘acceptable’ settlement number is
may go down. And of course the insurance company knows this.

 
Conclusion

We at the Law Office of Paul J. Dombeck, PLLC hope that this information proves useful to claimants navigating the insurance and legal worlds, and we are happy to talk with you about your claim. Contact us at 602-648-2035 or at www.disabiltyarizona.com or paul.dombeck@azbar.org



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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