Claims Commandments

Claims Commandment X

Thou Shall Not Pretend to be a Lawyer

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Some experienced and professional claims people know the law in their area of expertise better than most lawyers. Most claims people do not, nor are they capable of pretending, that they know the law.

Whether the claims person knows the law of insurance contracts or tort law well, he or she is not a lawyer and should not do anything that even hints that the adjuster is acting as a lawyer. Some insurers have hired people with law degrees as adjusters. Even with a law degree they are still just adjusters and are not hired to practice law. A law degree does not make a person a lawyer. If they are licensed to practice law in the state, if hired as an adjuster, they must still only act as an adjuster and not practice law.

Communications with an insured, dealing with coverage issues should be limited to the wording of the policy and the claim against the insured. If the case requires that legal authorities be cited to an insured or claimant to best communicate the position of the insurer the adjuster should retain the services of a competent coverage lawyer to write to the insured as the attorney for the insurer.

Many years ago, some disreputable insurance companies rescinded policies of insurance as a matter of policy to avoid legitimate claims. The claims staff was instructed to rescind every policy that generated a large claim. The insurer even provided a rubber stamp for the claim staff to use that said “RESCINDED”.

When a competent policyholder’s lawyer sued on behalf of those whose policies were rescinded and took the deposition of the adjuster, he destroyed the insurers’ position with a simple question: “Please spell ‘rescission.’” None of the adjusters he deposed could spell it correctly. Those few who could spell the word correctly were stumped by the second question: “What elements must be proved to establish a valid rescission.”

A coverage lawyer would have no trouble answering the two questions. An untrained and inexperienced adjuster would not. The insurers who rescinded willy nilly were assessed punitive damages in addition to requiring them to pay the claims. Most went out of business.

Adjusters should be adjusters and leave lawyering to lawyers. Similarly, lawyers should be lawyers and never attempt to be adjusters.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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