September 18, 2018

Archives for December 2007

Two-Faced Legal Fee Management? Defense Counsel vs. Coverage Counsel Costs

A common complaint leveled against insurance companies is that they pay one (low) rate for their defense counsel and another (higher) rate for their coverage counsel. The idea is that insurers skimp on legal services when it’s their insureds whose fate is on the line but spare no expense when their own hides are at stake in a coverage or bad faith dispute. The undercurrent is that insurers are being inconsistent if not two-faced by observing two separate tracks of rate structures.

One claims specialist recalls a meeting of claims executives years ago wherein the subject for discussion was attorneys’ fees (as it often was and is). One vice president (and pundit ) was overheard remarking, “You care about ‘how much’ when it’s the insured who is being defended, but when it’s YOU who’s the defendant, or the subject of a subpoena, then you care about ‘how good.'”

Let’s look at this knock on insurers, though. First, comparing general insurance defense counsel with coverage counsel may not be an apples-to-apples comparison. General insurance defense counsel often defend policyholders against garden-variety kinds of claims that many (many) law firms could handle competently, by contrast, there are not nearly as many coverage lawyers around. The two kinds of practice call for somewhat different skill sets, and their respective supply and demand curves are different.

Let’s also note that most litigated coverage cases involve larger stakes than the run of the mill litigated case (exceptions abound). Second, the macro/precedent impact of a coverage matter – broader impact on other cases and policies — makes the consequences more sweeping. Third, coverage expertise is often more specialized than general litigation defense, commanding premium rates.

Just as partners in firms are paid more than associates for a host of (legit) reasons. Partners are more specialized and more seasoned. They are in greater “demand” due to their business development skills. Thus, they are paid more than associates. Does this suggest that law firms are two-faced or inconsistent?

The quip from the Claims VP is telling and perhaps somewhat tongue-in-cheek, but nevertheless there is nothing inherently two-faced or nefarious (nor surprising) that coverage counsel often command higher rates than run-of-the mill defense attorneys, no disrespect intended to the latter either.

In some cases, defense counsel possibly should command equally high fees or even higher fees than coverage counsel. On balance, though, a fee disparity here may be rational and have a legitimate rationale.

If Adjusters and Attorneys Re-wrote "The Night Before Christmas"

— THE NIGHT BEFORE CHRISTMAS, LEGALLY SPEAKING

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g. stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter.

The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g. kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e. the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional co-conspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: “Merry Christmas to all and to all a good night!”

. . . Or words to that effect.

Use The Holiday Season to Elevate your "Claims Game"!

Christmas time is one time of year when I’m glad to be a claims person and not an underwriter. With so many insurance renewal dates at 12/31 or 1/1 on the calendar, the underwriters are at peak workload at this time of year, scrambling to address new and renewal business. Underwriters are besieged by the need for insurance quotes or brokers who want to cut deals. In fact, it is downright hard for underwriters to take much time off during the holiday season.

Not so for the claim folks. If anything, our volume drops this time of year. There are likely many reasons for this. One may relate to the fact that we only handle product liability claims. If we were dealing with personal lines losses – autos or homeowners for example – December might be a busier time. In the world our claims department occupies, though – commercial liability – the folks at insured companies who report claims are often out on vacation themselves. Attorneys who generate much of the paper and activity on litigated cases are in a wind-down mode. Judges do not seem too keen to schedule mediations or trials during the Christmas season, though I have been in a couple of nail-biters during yuletide, worried that the jury was going to turn into a gaggle of twelve Santa Clauses.

For some claim departments, the holiday season marks a ramp-down of the pace of business. Less incoming mail arrives. The phone is quieter. Fewer emails and faxes intrude. (Your mileage may vary, again either due to the types of insurance you write or if you work for a TPA that gets overflow assignments.)

This can be an excellent time for the claim staff to invest time in activities that will boost their productivity and get them off to a running start the next year. For example:
• Purging old materials (both hard copy and files on hard drives) that are no longer needed
• Organizing one’s desk, drawers and reference material
• Writing out professional goals for the next year and embedding ticklers or reminders on the calendar to revisit progress on these periodically through the year
• Networking with other professionals that you had a hard time finding time for earlier in the year

Use any “lull” presented at the end of year to catch your breath, gather yourself, get organized and get focused on what you want to accomplish as a claim professional in 2008!

The Claims Coach may slide down the chimney and appear again before the end of the year but, in any event, he wishes all a happy and fun holiday season!!

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