Dolphins (real injury cases with legitimate claimants) are getting caught up in a net designed to catch Tuna( ham and eggs chiropractic, MD blended cases that run through TV firms at high volume, some real, some borderline fraud).
Of 85 active cases, 35 are in the Courts right now and, if memory serves, 9 of them are against GEICO. Why is a disproportionate amount of our litigation pending against one carrier and their insureds? The reason these cases are going into suit and headed towards trial are myriad but I feel that at the core the problem is the adjuster has been stripped of their ability to distinguish between claims of substance and claims that should be fought on principal.
They are a good illustration of the difficulties facing an insurance company handling thousands of claims across the country. In an effort to standardize practices and avoid unequal outcomes, certain protocols are put in place that tell the adjuster what they can and cannot consider. There are no adjustments for good witnesses and poor witnesses. Medical claims values get anchored by treatment codes. Human judgment is marginalized. In the field, younger lawyers at lower salary are hired. Adjusters get higher case loads and often appear to have limited autonomy.
An example from a conversation I had with a polite lady from Macon this past week. We represent an airline pilot with a 2 inch diameter puncture wound above the knee. His medical care is all with orthopedic and ER physicians and he has approximately $8,000 in bills. He missed several weeks of flying time due to the injury and lost $6,900.00 in income. Liability is clear. In other words at trial, his worst outcome is only his bills and his wages or $14,900. The adjuster offered $15,000 and then advised me that “Judges only award 80% of lost wages.” Perplexed, I asked her who had told her that since Judges don’t decide lost wages awards, juries do. She seemed flustered and I politely suggested she double check her information. She continued to repeat it and then stated that a jury would never award any human damages for the injury because it was soft tissue. This is a picture of the injury.
I did not argue with her and politely told her that we disagreed. The case is not a huge one and likely is worth about $22,000 with a jury. I agree that insurers should expect a discount if they are settling a case early, but to low ball a clear, substantive case based on false belief about the nature of lost wages and the belief that “soft tissue” is a bad word is counterproductive.
GEICO is to well run in other respects to continue to operate claims in that fashion and that begs the question; why am I seeing this behavior? The answer goes back to macroeconomics. They are not just adjusting one case when they make a decision, they are adjusting a thousand like it. If a puncture wound is getting classified as a “soft tissue” injury, similar to a back sprain then the flaw is in the classification. If a firm that litigates files is getting lumped together with lousy TV lawyers who take crummy offers and stiff their clients, then they error is in classification.
Across the board, taking 10 “soft tissue” cases with $8,000 in medical bills, it may be true that the lousy lawyers running them accept just over medicals offers because the bills are BS chiro work ups in many cases. So why is a puncture wound case with a professional pilot and a real wage claim getting lumped in? Because the human being in claims has had her ability to distinguish and classify correctly stripped from her.
This is bad for the victims, because the Dolphins are forced to file suit, spend money on lawyers and take 2 years to get to trial. The insured is dragged through the litigation process, the defense lawyer has to get paid to defend a meritorious case and the poor adjuster has to deal with the added workload.
Arguably, on balance, it is good for the insurance carrier because 6 or 7 of 10 cases was BS and they were right in guessing that the lawyer would take the low end offer and they saved the insurer money by handling the claim that way. I get it and if it were up to me I would not settle those cases ever. Every case with pattern treatment that repeatedly shows up from the same firm should be tried until the firms learn to stop cooking up damages. BUT…..
For crying out loud develop a system where the adjuster can make a judgment call and put the file up the chain of command if it is not a joke. Human adjusters when well trained can spot a diamond in the rough. Those cases should be handled differently. This is not to say that an $8,000 meds case is a “diamond” in any sense other than it is a real injury claim that should be treated with respect and settled for a fair amount.
Given that these are always economically driven decisions, I do not foresee change until someone prescient enough to see the big picture starts looking for the commonalities in the trials they are losing and notices that they are almost always good claimants with real injuries that got low ball offers. You will normally beat the scummy claims, its the real ones that bite you. Learn how to recognize them and you will have a morally sustainable and more profitable outfit.
That’s just my 2 cents.