September 23, 2019

Kill Them With Kindness … but Still Deny The Claim

[NOTE: “The Claims Coach” welcomes a guest post by good friend and fellow claims professional Nancy Germond, the founder of Insurance Writer, a Phoenix, AZ risk management and communications consulting firm. A second-generation insurance professional, Nancy has authored scores of risk-management articles and white papers. Nancy holds a Master’s degree in Sociology and the AIC, the ARM, the ITP and the SPHR designations.]

Few claims professionals enjoy disclaiming coverage or denying liability. Our lives as claims handlers would be much easier if our insureds’ policies covered any loss they sustained. There is an art to writing the disclaimer or denial which can make life easier for the writer. This method also helps the recipient understand why your company will not provide coverage or accept liability. We call this approach “Kiss ‘em, kick ‘em, kiss em.”

Begin your letter with a sentence—a “kiss.” This wording thanks the insured for choosing your company or praises the claimant for his or her cooperation. Use language like this:

“We appreciate the confidence you placed in our company when you purchased your coverage and your cooperation throughout our investigation of this matter.” Even if the insured was unhelpful, use language that affirms the insured’s role in the insurance contract, such as, “We appreciate your patience during this process.”

To the claimant, you may say something like this: “Thank you for your assistance during our investigation of this matter. We appreciate your patience while we determined the facts of the incident.” This “kiss ‘em” approach affirms the insured or the claimant and stresses the positive, even though you may deliver bad news.

Next, in two or three sentences, outline the events that occurred. Here is some sample wording. “This loss occurred on February 24, 2012, when your employees moved a piece of merchandise by hand truck from your vehicle into the claimant’s location in Henderson, Nevada. This property was in your care, custody, and control while your employees unloaded this equipment from your truck. You described this merchandise as ‘a late-model Kenmore refrigerator.’”

You may want to explain where you obtained the information you rely upon for your decision. For example, “According to the information you provided to our independent adjuster on June 1, 2011, this loss occurred ….” This allows insureds or claimants to correct any misunderstandings they believe you have about the event.

Next, you must gently “kick” your insured or the claimant. After outlining appropriate language that precludes coverage, write a sentence explaining why you disclaim coverage or deny liability. Try language like this:

“Because you were in control of your customer’s refrigerator and due to the foregoing ‘care, custody and control’ exclusion in your policy, we regret that we cannot extend coverage in this matter.” For a denial, wording like, “Due to the extreme weather conditions at the time, we cannot accept liability for your fall.”

End the letter with a final “kiss.” Try language like this:

“While we regret we are unable to pay this loss, we value your trust in our company. If you have any additional information that you feel may alter our decision, feel free to contact me.” If you are writing to the claimant, try something like this:

“While we cannot extend coverage in this loss, we hope that you make a speedy recovery.”

Always add language inviting the insured or claimant to contact you if they have additional information that may alter your decision. Use wording like “If you have any facts that you feel may change our decision, please feel free to contact me.”

This simple wording helps place the responsibility on the insured or the claimant to take further action if circumstances change or they have not previously provided all the facts. This simple affirmative sentence can help prevent misunderstandings and reduce the risk of a successful bad faith claim. It may also help you if these letters become evidence in trial. A well-written letter speaks volumes about your credibility as a claim professional.

Writing the perfect disclaimer is a delicate balance of clearly outlining what the coverage states and how it does or does not apply to the loss facts. Too much explaining can cloud the issue, which can be problematic if you must defend your coverage decision. Writing the perfect liability denial is a bit simpler, especially when you can help point the claimant toward the appropriate party.

For example, in a sidewalk case, the city may be responsible for maintenance in that area. You can furnish a phone number, mailing address or even a hyperlink to a URL where the claimant can download a municipal claim form. Pointing the claimant in the proper direction can help prevent a lawsuit and prevent legal spend.

The “kiss ‘em, kick ‘em, kiss ‘em” approach respects the ongoing relationship you have with your insureds and can help them accept the disclaimer more positively. For claimants, remaining firm but polite and helpful can reduce the chance of the claimant filing suit.

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