The Elephant in the Courtroom: Insurance Companies

Superbowl Sunday brings new commercials every year—some good ones that bring smiles and laughs, others that make your heart feel good, and some that just make you cringe or scratch your head. Which industry spends the most money on advertisements? I’d say insurance companies….

Aaron Rodgers throwing his tennis ball a bit too far, the Chris Paul look-a-like shattering the mirror with the kettlebell, Patrick Mahomes getting a haircut, and Peyton Manning and Brad Paisley singing duets—these are all commercials for insurance. Some insurance companies don’t use star athletes or singers in their commercials—they rely on beautiful images of a family with words like “protect,” “safe,” and “secure.” Others rely on a lizard with an accent, although I haven’t seen that reptile for a while.

Insurance is a necessity in American society: you’re required to have auto insurance to drive a car, and you get home insurance when you sign a mortgage. And that doesn’t have to be such a bad thing. By paying premiums every month for years and years, we are investing in the civil justice system. When something bad happens, the insurance company is supposed to step in: policyholders pay money to the insurance company for the insurance company’s promise to provide coverage if the need arises. It’s the insurance company’s job to step up for the insured wrongdoer and make things right for the victim who has been harmed—to fix what can be fixed, help what can be helped, and make up for what can’t be fixed or helped.

So what’s the problem?

Two things really: (1) Insurance companies are not human; and (2) Insurance companies are for profit businesses.

Insurance companies aren’t terrible at evaluating the cost of a broken windshield caused by Aaron Rodger’s errant tennis ball, or the mirror shattered by the kettlebell that slipped from the Chris Paul looka-like, or the hoofprints on the hood of the car left by the dancing deer. Those are property damage losses, and the insurance company has a system for appraising the repair or replacement value.

But what about the value of an injured person never being able to sit in a chair without pain again, or someone’s ability to do a Sudoku puzzle being taken, or the grief and sense of loss experienced because of a loved one dying in a crash? Insurance companies fail miserably here, in part because they are not human. Insurance companies value economic loss—not human loss. And because of this lack of humanness, insurance companies fail to protect the humans the company signed up to protect—both the insured wrongdoer and the victim harmed by the insured.

Insurance companies chose to be in this business to make money. It’s not like insurance companies signed up out of the goodness of their heart—they don’t have hearts…. Despite the pretty phrases “like a good neighbor,” “on your side,” “in good hands,” or “peace of mind,” insurance companies are extremely conflicted entities: they are multi billion-dollar international corporations designed and engineered to collect as much in premiums and pay as little out on claims as possible.

How much do you think the insurance company pays guys like Peyton Manning and Brad Paisley for an hour of their time filming a commercial? $100,000? More? And yet, what about when someone is injured by that insurance company’s insured? What value does the insurance company place on an hour of excruciating pain, an hour-long surgery, an hour of physical therapy to try to regain strength in an injured leg, an hour of being paralyzed—when the injured individual is not Peyton Manning, Patrick Mahomes, or Aaron Rodgers? What does this say about what the insurance company values?

What happens when an injured person makes a claim against an insurance company? Unfortunately, all too often the answer of the insurance company is to deny, delay, and minimize. If a fair settlement is not possible without litigation, the injured person is forced to file a lawsuit. Who do they sue? The good neighbor? The talking lizard? No. The named Defendant is the insured—the person who many times paid premiums for years in exchange for the insurance company’s promises to protect their interests. And most every time, the insurance company has said NOTHING about the injured victim’s attempts to settle the matter without filing lawsuit, and even after the lawsuit is filed, the named Defendant remains in the dark about what’s really going on. Whose interests is the insurance company truly protecting?

Our civil justice system has a curious rule. Most of the time, there can be no mention of the insurance company holding the purse strings during a trial. It’s like the rule in fightclub: never talk about the insurance company, even though everyone either knows or is wondering about it….

So in most civil cases, there are two humans (the Plaintiff and Defendant—neither who really want to be there most of the time), and the non-human insurance company calling the shots from the shadows. The insured Defendant is just a pawn used by the insurance company, and the injured Plaintiff is just a number that the insurance company is trying to minimize. Imagine if the insurance company valued the injured person’s life the way they value its commercials?

What’s the answer for the insurance company’s callousness? Human beings like you. Part of our bill of rights guarantees injured victims the right to a civil jury trial—a trial heard by everyday human beings who decide the true value of an injured victim’s harms and losses. Human beings who value life, liberty, and the pursuit of happiness, stand up to insurance companies by placing value on the time an injured person was forced to spend going to medical appointments and physical therapy rather than going for a walk with a friend or a bike ride with their child. What if the insurance company valued that life the same way they valued Aaron Rodgers appearing in their commercial?

If you’ve suffered or are suffering harms and losses, and an insurance company is failing to recognize the value of what’s been taken, I hope you’ll call me. I promise to value you as a human being, and to fight for your right to life, liberty, and the pursuit of happiness*.

*Credit to David Ball (David Ball on Damages) and Nicholas and Courtney Rowley (Running with the Bulls) for some of the ideas and language contained in this post.

Three Legs of a stool

Do I have a case? That’s the question on many people’s minds when they reach out to me. And after they’ve told their story, that’s the question that many end up asking: Do I have a case?

To answer that question, I use an analogy: the three-legged stool. This evaluation process isn’t unique to me. Many personal injury lawyers do the same thing. It works.

What are the three legs of the stool?

1. Liability;

2. Damages; and

3. Collectability.

Have you ever tried to sit on a stool with one or two legs missing? How did that go for you? Well, the same thing happens with your case. We need all three legs of the stool for your case to stand up in court. Let’s look at each leg in a bit more detail:

1. Liability. This means somebody did something wrong. They needlessly endangered someone else’s safety. This could be a person that rear-ends you when you’re stopped in traffic, a company that puts a dangerous drug on the market; or a doctor that cuts the wrong cord. Sometimes liability is easy to establish; other times it’s extremely challenging.

2. Damages. This means that you experienced or are experiencing harms and losses. What are those harms and losses? Are you paralyzed? Or did you go to physical therapy for several months to regain your strength and get rid of the pain? Did you fracture your kneecap? Need surgery? Or did you hurt your head and are now having trouble with your memory?

3. Collectability. Is there a source of monetary recovery? Hundreds of years ago, our law was limited to an eye for an eye. If someone else broke your leg, justice required another broken leg in retribution. That’s changed now. And we’re also not talking about sending the wrongdoer to jail—that’s for the criminal justice side. We’re talking about America’s civil justice system. And money is the only compensation for a person harmed by someone else needlessly endangering safety. But is there money at the end of the case? An insurance policy or two, a wealthy individual or company, the government?

Sometimes it’s easy to evaluate the three legs of the stool. But other situations require extensive investigation, research, and creativity. For example, what rules apply to the doctor performing the operation? Are there special rules that apply to the semi-truck driver involved in the accident? And for collectability, every insurance policy contains a contract: what are the details of that contract? Is this an underinsured or uninsured case? What are the policy limits? Has the insurance company evaluated the situation in good faith? And by the way, what is the monetary value of pain for 5 months? What about for 2 years? Or forever? What’s the value of not being able to walk again, not being able to hold your child or grandchild again, or the loss of a loved one?

If you have questions about the three legs of your stool, give me a call. I want to hear your story and help build your case—one stool leg at a time.

The Covid-19 Shutdown

The COVID-19 shutdown. This phrase triggers so many different emotions in different people—and many people hold conflicting emotions within themselves. Fear of the virus; frustration at perceived overreactions and government overreach; increased concern for elderly or vulnerable loved ones.

It’s commonly accepted that we as a people are as politically divided as we’ve ever been. Our response to the current pandemic has not lessened that divide. But through all the chaos, the turmoil, and upheaval, what can we agree on? Sometimes when things are bleakest, or most frustrating, that condition causes our values to come into focus.

So what do we value? I’m especially interested in our shared values. What do the divisive responses show about what we value as people, generally? And can we find common ground about those values? I see two values that permeate the conflicting emotions sparked by the pandemic:

1. Health; and

2. Work.

People on different sides of the divided response to the pandemic may feel health or work overly threatened by the response to COVID-19. Or perhaps different people associate a different risk level to health or work with COVID-19 and the response. But I’m hopeful that we can all agree that both health and work are important—that these are things we value. So what can we takeaway from COVID-19, the response to COVID-19, and our values of health and work?

Our current situation will pass. Whether it’s through a vaccine, natural passage of time, or simply living with the threat of a new virus, we will not remain on lockdown. But can we meaningfully examine our recognized values, and use this examination and recognition to live a more fulfilling, thoughtful, and enjoyable life in the future?