Practicing law and practicing adjustment are two different things. Some attorneys arrogantly think they know more about insurance because they understand insurance law. They often have no clue what they are talking about or understand what is going on in the insurance claims office. One significant part of understanding insurance and insurance claims handling for attorneys, whether policyholder or insurance company counsel, is to understand the training, management and day to day activities of adjusters. Thinking that an attorney is skilled in insurance because he can read, write and understand insurance cases and statutes is akin to thinking that an attorney can be skilled in surgery because he can read, write and understand medical malpractice cases.
This point was emphasized again in a blog by Ronald D. Kent, Lawyer Cannot Testify as Expert in Bad Faith Case Where Lawyer’s Background Is Not Relevant To Issues in Case, where he noted a bad faith case Butler v. First Acceptance Insurance Co., 652 F. Supp. 2d 1264 (N.D. Ga. 2009), He quoted the significant part of the Court’s ruling:
Mr. Jenkins is not qualified to provide expert testimony on the standard of care for a claims adjuster receiving a time limited demand letter. Mr. Jenkins is an attorney who has represented parties in personal injury and insurance litigation for over 30 years. He is co-author of Georgia Automobile Insurance Law, Including Tort Law. Mr. Jenkins was retained as an expert in a Georgia state court case involving a tortious failure to settle claim. The court notes, however, that Mr. Jenkins has never worked in the insurance industry, nor has he litigated a tortious failure to settle case. While an expert may be qualified based on "knowledge, skill, experience, training, or education," the court finds that Mr. Jenkins’ extensive background is not relevant to the legal issues here. Mr. Jenkins’ experience relates to personal injury and insurance claims in general. Mr. Jenkins admitted that he never litigated a tortious failure to settle claim and therefore his background does not match the subject matter of this suit. Further, because Mr. Jenkins lacks the qualifications necessary to opine in a tortious failure to settle case, Plaintiff cannot explain how Mr. Jenkins’ experiences lead to the opinions he has offered in this case. Nor can Plaintiff show that Mr. Jenkins’ testimony would offer the jury any more than what Plaintiff’s counsel could argue in closing arguments. Finally, the court notes that the great bulk of Mr. Jenkins’ proposed testimony sets forth legal standards for insurers under Georgia law. The jury, however, is not to receive its instructions of law from a party’s expert, rather it receives them from the judge. For these reasons, the court concludes that Mr. Jenkins is not qualified to offer his opinion in this case because his area of experience is not relevant for the issues in the litigation and will not aid the trier of fact. (emphasis added)
I disagree with the Court regarding the jury instructions because experts can help prove the legal duties of claims adjusters and insurance companies which should be part of the jury instructions. As I indicated in Claims Magazine and the CPCU Designation are Worthy Educational Investments for Claims Professionals:
Imagine you wanted to find out how insurance adjusters are supposed to do their job. Insurance company attorneys argue an adjuster’s job is a legal duty, and not for determination by the adjusters. Their argument is circular and flawed: how does the law know what an adjuster is supposed to do without knowing the standards and duties from adjusters themselves?
The American Institute for CPCU provides the most recognized and important designation for claims professionals. The Society, with materials from the American Insurance Institute, has an intense learning process dedicated to a high standard of ethical and policyholder centered claims treatment. The Claims Magazine article notes that claims professionals "are often called upon to testify in legal proceedings."
Our firm often cites to CPCU educational materials as proof of insurance industry standards and interpretation of contracts.
Still, the opinion is warning about the types of experts needed in a bad faith case. Experienced Claims Adjusters May Make Better Insurance Claims Experts Than Attorneys. I have suggested to a number of experienced adjusters that they should study and apply for a CPCU designation so they could be more easily considered as an expert witness.
