Fool me twice… Shame on Me

Metro Toronto Convention CentreFebruary 2, 2010

Introduction & Presentation Objectives

• Evidence Gathering• Independent Adjuster’s Prospective• Best Practices

Background & Theory

Code of Conduct and Ethics for Independent Adjusters

• Policy holders/Claimant are entitled to courteous, fair and objective treatment • Policy holders/Claimants are entitled to prompt and knowledgeable service• Policy holders/Claimants or anyone who has given a statement may request or

obtain a copy of statements and documents provided without any charge or delay• Adjusters ought not to give legal advice or shall they be advised to refrain from

seeking legal advice • Provide explanations with respect to coverage as it relates to the loss• Information including medical, financial, or other records shall not be obtained

without written consent of the individual or his legal representative• Adjuster will identify himself as an adjuster in all his dealings and shall, if required,

fully identify his Principals

Dealing with Insurers• Disclose all facts that have bearing• Shall represent only one interest and shall inform his Principals of any conflict

brought about by: - Dual assignments , interests in the claim- Other relationships- Previous knowledge

• Adjuster shall have no financial interest in the claim. No interest in salvage unless otherwise provided or authority given by the Principals

• Not accept any consideration other than that from his Principals• All information received shall be treated confidentially and shall not be disclosed

to any person except as authorized by his Principals or by law.

Generalities in Regard to Best Practices

• Promote uniform standards of conduct in investigations

• Promote education

• Distribute publications and programs to enhance professional development

EvidenceEvidence is by definition anything that could be presented at a trial or could prove

one’s case. It can take to from of documentary or physical but it is not limited to just these. It can include:

A written statement An alarm company report A credit card invoice Expert’s excerpts reports and exhibits Testimony under oath

Issues that can impact on evidence:• Spoliation• Relevancy• Destroyed or tampered with to suppress truth• Privilege

Investigative Strategies Insurance Investigation Strategies and Objectives

• The risk (the basis of the contract)• The subject matter• The incident

Is the risk , that of what was contemplated in the application and/or at the time the policy was written.

Is the subject matter as is being reported and/or when can we last independently verify .

Is as reported (i.e. is it staged in some way)

Importance of Credibility • Discrepancies, should they appear in the investigation should be clarified

• Tests of credibility should can be established through follow up on undertakings and statements, further interviews of both witnesses and insured

Employment of Experts • Consider the importance of the expert, their evidence and their ability to present

should the matter proceed to litigation• Consider the skill set of the experts and its significance in the investigation or claim

decision• How will they handle the evidence and account for its accuracy• List of experts can include:

- Accountants (financial reports, inventories, business operations and business interruptions) - Lawyers (examinations under oath- Doctors (diagnosis, prognosis, disability)- Surveillance - Engineers (cause and origin)- Laboratory (DNA)

Evaluation & Reconciliation with Coverage

• Policy defenses• Statutory conditions • Insurance Act (i.e. Section 233)• Claim committees • Legal opinion• Examination under oath• Coverage, negotiation , or providing reasons • Blank Proof of Loss• Proscription dates

Best Practices • Adequate preparation for investigation (develop a strategy, draft out strategy,

recognize the purpose and objectives) • Prepare detailed notes either electronic or paper, provide detail, anticipate that

notes will be provided to plaintiff counsel• Anticipate all correspondence, reports, notes to be produce despite privilege

Scenarios Staged arson Staged auto theft(discussion surrounding evidence collection)

Conclusions