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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THECLM.ORG CLM MAGAZINE 29 Tenacity Strength Perseverance Choose Spartan For Your Subrogation & Recovery Needs www.spartanrecoveries.com 866-780-0876 AUTO PROPERTY CARGO WORKERS' COMP • Full Outsourcing • Forensic Review • Consulting • Arbitration Filings • Overflow • Deductible Recovery • FNOL Program • Lien Recovery • Litigation Management Spirits of the Season investigate the establishment's history and reputation. Has the establishment ever been sued or accused of over- serving its patrons in the past? Were all of the employees on the payroll? Although certain information can be kept out of evidence at trial, the jury is still going to learn about how many employees are on staff for any given shift and how that compares to the number of patrons in the bar. In addition, consider how crowded the bar was during the period of sale in order to establish how much time and ability the server had to size up the patron and confirm that he could be served another drink. Do not forget to speak to bouncers, hosts, and servers. Anyone working during the relevant time period may have useful information. Identify any regulars who frequent the establishment. Ask if they have any photographs or videos on their cellphones taken during the relevant time period. Finally, it may be worthwhile to submit a Freedom of Information Act request for any police reports and investigative reports from a local district attorney's office. Those reports may contain the names of witnesses whose identities were unknown. Also, obtain any court records pertaining to criminal or civil action concerning the patron. Again, it is always best to know all publicly available information upfront, even if some of it is going to be harmful to the defense. SPREAD THE WEALTH Any prudent claims investigation should consider the ability to involve other defendants. If the subject establishment is leased, what does the lease say? Does the landowner have any culpability or contractual obligations to your insured business? What about other establishments that the patron may have visited before or after your insured's business on the evening in question? Do they have any responsibility? Whether the case is ripe for settlement or on its way to trial, having other entities involved is always helpful. The only thing better than a proactive investigation that uncovers evidence leading to a defense verdict is to avoid the claim altogether. Claims departments should consistently deliver information associated with the positive and negative outcomes that arose in past cases to their underwriting departments. Underwriters should be fully aware of jurisdictional statutes, changing trends, and common issues associated with various risk types that will help them to decide who and who not to write policies for, and how to price them. Knowledge is power, and having knowledge within an organization without putting it in the hands of those selecting the risks could be foolish. Dram shop claims can involve millions of dollars in liability, and reliance upon witnesses with hazy memories, made worse because they were drinking alcohol on the date in question. But by being aggressive, proactive, and thorough in a pre-suit investigation, a claims examiner will have all of the available facts to set an accurate reserve and navigate an effective defense (or timely settlement). At the very least, you will know what you are up against upfront, and you will be less likely to experience the "surprise" moment that changes everything. K Christopher George is partner at Melick & Porter LLP. He can be reached at cgeorge@melicklaw.com. Nicholas Convery is casualty claims manager at Norfolk & Dedham Group. He can be reached at nconvery@ndgroup.com. 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.

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