CLM Magazine

DEC 2017

Claims Management Magazine informs and educates claims, risk, and litigation management professionals on the news, trends, products and services that lead to the efficient, cost-effective resolution of property & casualty claims.

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Page 26 of 43

THECLM.ORG CLM MAGAZINE 27 When it comes to a claims investigation, the best defense is often a great offense. This can be especially true in dram shop litigation when a bartender is accused of serving an alcoholic beverage to a patron he knows (or should know) is intoxicated who then injures a third party. Dram shop claims typically involve claimants who have sustained catastrophic injuries. Any shift in the liability analysis caused by newly discovered information can change the exposure by millions of dollars. By being proactive in the pre-suit investigation, claims departments and defense counsel can help avoid a scenario where, mid-litigation, a surprise witness or evidence surfaces. KNOW THE RULES AND ACT FAST Statutes, laws, and case precedents in different jurisdictions can dramatically impact an exposure and the evidence needed to produce a solid defense. Claims professionals should be continually trained in the locations they manage. It's OK to utilize counsel to help navigate these waters, but claims professionals still need to be up to date on the various notice provisions, statutes of limitations, and caps that a given jurisdiction may have. A cheat sheet might be a good idea for departments managing multiple jurisdictions. Being proactive in the pre-suit investigation means following up on any potential lead as soon as possible. In today's technological age, there is an enormous amount of information available, and a prudent investigation aims to be aggressive and organized about accessing it. Simply relying on the words of the insured's staff denying any responsibility can result in new evidence, revealed mid-litigation, that negatively changes the trajectory of the case. Rarely will a bartender or employee admit that she over-served someone who was already intoxicated. Collecting corroborating evidence is crucial to providing a solid foundation for the defense counsel's trial strategy. In our work defending a claim, we prefer to gather the relevant information upfront, even if it results in the discovery of something potentially detrimental to our insured business. As long as we have the correct information, claims professionals and defense counsel can arrive at the best possible result without being surprised. Late-notice claims, high employee turnover rates at bars and restaurants, and taped-over video footage are all challenges that the defense may face when managing these claims, so speed matters. Spirits of the Season IN DRAM SHOP LITIGATION, A PROACTIVE PRE-SUIT INVESTIGATION CAN HEAD OFF THAT MID-LITIGATION SURPRISE By Christopher George and Nicholas Convery

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