The Insurer's Duty to the Insured When Faced with Bad Facts and Serious Injuries

Serious Injuries & Clear Liability Require Quick and Thorough Action

Some lawsuits are based on clear liability and terrible facts and injuries that compel the parties involved to settle the case as quickly as possible. In such cases defending and indemnifying the insured is liable to be costly and could easily exceed the available policy limits. If the adjuster’s reaction to the fact pattern is disbelief or horror, and his or her first impulse is to trade the claim to another adjuster, these are signs that the case must be settled quickly.

Bad facts and bad injuries get more expensive with time. These cases should not be aggressively defended but should rather be handled with empathy and generosity so that they can be resolved within the limits available from the insured’s policy.

The worst of all cases could be an insured who admits he fell asleep at the wheel, crossed over the double line and an island and struck a tiny Ford Escape head on and rendered a paraplegic a 40 year old widower father of four minor children all of who suffered from Down Syndrome and needed constant care. The insured has a policy with only $500,000 in limits. With the admission of liability and the extent of the injuries every effort must be made to pay the limits as soon as possible. A release on behalf of the insured would be useful but the adjuster should not make the injured file suit before paying the limit, even if it must be paid without condition.

Bad facts usually result in bad law. It is improper to take a chance on the insured facing an uninsured loss just to give the insurer the opportunity to create a legal precedent favorable to the insurer. The fact that more trial court judgments are affirmed than are reversed should temper the desire to file an appeal.

An insurer should never experiment if there is any potential that the insured could incur an uninsured loss unless the insurer is willing to guarantee payment of any judgment regardless of the policy’s liability limits. Otherwise, the insurer will probably be found in breach of the duty of good faith if an attempt is made to change a law that will benefit the insurer over its entire book of business, and if it results in an adverse judgment against the insured in excess of policy limits.

If the insurer wants to make a precedent it should enter into a written agreement with the insured to take the case to trial and promise the insured that it will indemnify him or her regardless of the verdict (whether within policy limits or not) and will reimburse all of his or her expenses.

© 2021 – Barry Zalma

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 also serves as an arbitrator or mediator for insurance related disputes. 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.

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He is available at http://www.zalma.com and zalma@zalma.com. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to training available at https://claimschool.com; articles at https://zalma.substack.com,  the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at https://www.rumble.com/zalma ; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/  The last two issues of ZIFL are available at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4