Educational Services

Feature article: Preservation of Evidence: Avoiding Allegations of Spoliation of Evidence

The tort of ‘spoliation’ is created when vital evidence is accidentally or intentionally lost or disposed of before a party wanting the evidence examined by an expert has the opportunity to do so. Not all states, including Louisiana, recognize the tort of spoliation.

The case of Reynolds* involved an auto accident in which the air bags did not deploy. The injured party brought suit against his auto insurer and a vendor that took custody of the wrecked vehicle. After the vendor disposed of the vehicle, the insured alleged he was unable to have it inspected for defective equipment, thus depriving him of a right of action in a products-liability claim against the auto manufacturer. He also claimed he gave notice to the insurer and salvage company of the need to preserve the vehicle, and that both were aware of his potential litigation. (The insurer may well also have had an interest if the evidence showed a defect that would have allowed subrogation or contribution.)

The defendants’ motion for summary judgment was initially denied by the Louisiana trial court, which cited a recent First Circuit Court of Appeals decision. It was later changed by a First Circuit decision. The defendants’ exceptions were then accepted by the trial court and affirmed by the appellate court, finding that the cause of action for negligent spoliation did not exist under Louisiana Law.

The Supreme Court of Louisiana granted certiorari in order to rule on the viability of such a cause of action under the state’s law, citing the basis for tort actions in Louisiana Civil Code article 2315, which says, “Every act whatever of man that causes damage to another obliges him to whose fault it happened to repair it.”

The Court found that negligently spoliating evidence is “so unintentional of an act” that if a negligent spoliation claim existed, it would not deter future spoliation conduct by a third party. Instead, it would penalize a party that is unaware of its potential wrongdoing, has no vested interest in the outcome of the underlying case, and no motivation to destroy or make evidence unavailable. Additionally, Louisiana’s comparative negligence rule states that compensating the victim of negligent spoliation would be highly speculative.

Nevertheless, because several states recognize the spoliation of evidence tort, adjusters must carefully preserve physical evidence. Cases such as foreign matter in a soda bottle left sitting on an adjuster’s desk that gets thrown away by the custodian, or misplacement of a blown tire that could be evidence in a fatal accident case have illustrated that this unique tort can have serious ramifications. Caution must also be taken when sending evidence to a laboratory for examination, as it can be lost in shipment or sent to the wrong place.

Physical evidence is often needed for subrogation purposes. That was, perhaps, the key point in Reynolds that was missed by the court: Both Reynolds and the insurer had a monetary stake in the potential products claim that disposal of the auto made null and void. Did that potential subrogation value exceed the cost of storing the vehicle or selling the salvage, or was the potential value of the subrogation not worth the salvage recovery? Reynolds and the insurer will never know.

It is precisely because of this type of claims situation that Crawford & Company^®’s Educational Services offers both classroom and KMC on Demand courses that cover the intricacies of insurance coverage, contract and liability issues and an understanding of damages and loss.

*La.: Reynolds v. Bordelon, 172 So.3d 589, (La., 2015).

Publications

04/27/2017
2017-04 | What Constitutes ‘Physical Injury’ To Property Under General Liability Policies?
Products liability claims, handled by Crawford & Company Casualty Claims Management specialists are among the most confusing general liability issues that adjusters of commercial losses encounter, which is why handling products claims is a key part of what is taught in Crawford Educational Services classes and KMC on Demand courses.

03/08/2017
Featured Article: Understanding the Particulars of Riot or Civil Commotion
We’ve all seen protests in the news over the last few years. While most are peaceful assemblies, sometimes they can take a turn for the worst and get out of control quickly, creating a confrontation with police and damage throughout the area. After the crowds have dissipated, what happens next? How does the mess get cleaned up?

01/20/2017
Featured Article: Pipeline and Railway Transportation of Oil, Gas and Hazardous Materials
Pipeline construction and transport accidents are frequently reported in the news. Many accidents that result in a spill of oil or some other hazardous material can create expansive legal and political issues, regardless of how minor the spill.

12/01/2016
Feature article: Investigating an Unmanned Aerial Vehicle Aviation Accident
Unmanned Aerial Vehicle (UAV) or “drone” issues have become national news as airline pilots report thousands of near encounters with drones being flown higher than the allowed 400 feet and in the vicinity of airports, both a violation of Federal Aviation Administration (FAA) rules.

11/17/2016
Featured Article: Personal Property, Home Services Not Always Covered
Going back to a basic insurance principle, insurance is intended to be a “last resort” method of risk management, including personal risk management. Each year, millions of Americans discover their homeowners or businessowners policy fails to cover certain losses that may arise. However, you can find specific coverage once you know what your policy excludes. Here are some more prevalent coverages available, depending on your needs.

10/14/2016
Featured Article: Requirements for Fire Investigation Experts
Fire claim adjustment often requires retaining the services of a fire expert or engineer to determine causation. In the October 2015 Claims Management feature article, Supressing the Burn, Attorney John W. Reis suggests that the National Fire Protection Association (NFPA) replacement of NFPA 921 fire investigation for NFPA 1033 would be “the next big avenue for expert challenges, especially with its recent revision in 2014.” Suggested minimum qualification are for each fire investigator to know 16 topics. However, this is neither code nor statute unless adopted by a state.

09/07/2016
Feature article: Preservation of Evidence: Avoiding Allegations of Spoliation of Evidence
The tort of ‘spoliation’ is created when vital evidence is accidentally or intentionally lost or disposed of before a party wanting the evidence examined by an expert has the opportunity to do so. Not all states, including Louisiana, recognize the tort of spoliation.

08/09/2016
Featured Article: Who Is Insured? The ‘Named Driver’ Condition
The plaintiff’s allegation was that he was injured in an auto accident when he was a passenger in a vehicle owned by Walker and driven by Gilmore. At the time of the accident, Walker’s vehicle was insured under a personal auto policy issued by the Titan Indemnity Co. and underwritten by Victoria Fire & Casualty Company. The policy stated that it did not provide liability insurance for any person who was not listed as a “named driver” on the policy. Walker was the sole listed driver. The insurer thus denied the plaintiff’s claim, and the plaintiff, Byoung Suk An, brought suit against Gilmore and Victoria F&C Co., seeking declaratory judgment that Victoria had a duty to defend and indemnify Walker and Gilmore. The trial court reviewed the policy and found in favor of the insurer, as the driver was not listed on the policy.

07/13/2016
Featured Article: Policy Archaeology and Lost Policies
Accurate records of what policies were in force, what they covered or did not cover, when they applied, and who they insured is a matter of sound risk management of information. In the case of Cardigan Mountain School*, a private school in New Hampshire was sued for events that had occurred during the 1967-1968 school year. The school could not find the insurance policies going back that far, but did find an accounting report that referenced a $1 million liability policy in 1970 with New Hampshire Insurance Co. A statement by one of the accountants revealed he believed had the school changed carriers between 1968 and 1970, it would have been noted on the audit report.

06/15/2016
Trends in Workers Compensation
“The state of the Workers Compensation market is calm for now, but increasing medical costs, changing regulations and cyber attacks could threaten the line,” suggested Nancy Grover in the October 2015 issue of National Underwriter. She quotes Mark Walls, vice president of communications and strategic analysis at Safety National and founder of WorkCompAnalysis, who said, “Medical costs continue to be the number-one cost driver, in spite of all the efforts to contain them.”

05/01/2016
Featured Article: Weather-Related Perils and Exclusions
Lightning Damage: A major cause of fire and structural damage is lightning. Scott Lacourse of Enservio reported in the August 2015 issue of Claims Magazine that lightning strikes the ground an estimated 25 million times a year. Each strike brings about one billion volts and billions of watts of energy, with temperatures between 18,000 ºF and 60,000 ºF, causing an estimated $674 million in homeowners claims in 2013 and killing 26 people in 2014. Lightning can destroy or damage structures; often adversely affects HVAC and electronic equipment in homes and businesses; and can cause power outages resulting in business-income losses.

04/01/2016
Featured Article: Use of Forensic Accountants in Claim Calculation
Both first- and third-party claims require accurate evaluation of both causation and the resulting loss. Webster’s New World Dictionary defines “forensic” as being: of, characteristic of, or suitable for a law court, public debate, or formal argumentation; specializing in or having to do with the application of scientific, especially medical knowledge in legal matters, as in the investigation of crime.

03/01/2016
Featured Article: Recalls, Electronics and Computers
About once a week, the media reports that between 1,000 to 100,000 autos are being recalled for a defect that might cause the owner a problem. These issues range from Volkswagen (VW) diesels with software that allow the vehicles to “cheat” and pass an emissions test when they shouldn’t; to General Motors (GM) cars with faulty ignition switches that suddenly disable vehicles in heavy traffic; to faulty exploding air bags. Many of the recalls involve computerized systems in newer model automobiles.

02/01/2016
Featured Article: Investigating Medical Billing Fraud
Many states, perhaps through lobbying efforts of doctors and hospitals, have legislated rules for the quick payment of medical claims. Such laws may potentially be a factor in the growing amount of fraud loss in medical billing.

01/01/2016
Take Note: Technological Advances in Three-Dimensional Printing
Today, three-dimensional (3-D) printing can produce a plastic gun or just about any other item one might need, but according to the U.S. Department and Health and Human Services and as reported in Popular Science magazine, NBC and elsewhere, 3-D printing of human organs may soon be possible.

12/01/2015
Featured Article: The Dilemma of the ‘Driverless’ Automobile
Two driverless cars collide in an intersection. The computer in one talks to the computer in the other and says, “Hey, I had the green light!” “No you did not!” says the other. “I did.” It sounds like a joke, but the reality is that “driverless” vehicles are already taking their place on our highways. The vehicle would drive itself, using computerized components to detect other traffic, traffic signals and other barriers, so that the vehicle is entirely autonomous.

11/01/2015
Featured Article: Social Media Useful in Discovery and Trial Preparation
When a defense counsel monitors the social media such as Facebook or the tweets and twitters of prospective jurors in the voir dire [jury selection] procedures, there can be surprises. Atlanta attorneys Colin K. Kelly and Allyya Z. Hague of Alston & Bird cite one case in which a prospective juror tweeted “Jury duty 2morrow. I may get 2 hang someone… can’t wait….” Yes, such an opinion could “hang” a jury, and defense counsel need to be aware of the social media as discoverable evidence in a trial. Kelly and Hague are authors of “A Trial Lawyer’s Guide To Using Social Media Information During Trial,” published in the October, 2013 issue of For the Defense, (Defense Research Institute, Chicago, Ill.)

10/01/2015
Featured Article: Injuries to the Brain
Media attention to sports injuries, particularly concussions sustained in football, have led to some potential changes in how such sports are conducted. Studies have found that advanced chronic traumatic encephalopathy (CTE), a form of brain disease and dementia far different from Alzheimer’s, arterial sclerosis or other brain disorders, is caused by repeated trauma to the brain due to concussions received by football players. Since 2013, a number of new such cases, even involving fatalities to teens playing high school football, have been reported.

09/01/2015
Featured Article: The Need for Surety Bonds
As the U.S. economy continues to improve in the wake of the 2008 financial recession, an increase in commercial and residential construction and infrastructure repair has also increased the market for various types of surety bonds (e.g. bid bonds, performance bonds, payment bonds, etc.). In the May 2014 issue of Best’s Review, Senior Associate Editor Kate Smith described how one 75-year-old Texas firm with over 550 employees, Ballenger Construction, was working on over twenty different highway construction projects in 2012. On one where it had bid for work on an underpass, it had been hit with a number of problems ranging from rapidly rising fuel costs to finding a nest of endangered spiders at the worksite that brought construction to a halt.

08/01/2015
Featured Article: Claim Expectations Across Generations
What defines a generation? While music, fashion and social commonalities have long linked members of the same age group (as well as separated them from past and future generations), beneath the outer trappings is a shared, cultural mindset that affects everything from career and financial expectations to how individuals react to personal misfortune, including how they handle claims.

07/01/2015
Featured Article: Are Drones the Wave of the Future?
The unmanned aerial vehicle (drone) industry is continuing to boom. More than 7,000 of them are operated by the military in the Middle East, and many U.S. companies are considering their use for package delivery, surveillance, search and rescue and other uses. In the September, 2014, issue of Claims Management, Kevin Quinley suggests that even insurers could use drones for surveillance on bodily injury claimants who assert disability. Insurers might also someday have the means of monitoring their insureds’ driving habits from the air, using some type of radio signal from an insured auto that would register to a drone flying or hovering above a freeway as to speed or erratic lane changes. With infrared detection, drones could help fine lost children or criminals.

06/01/2015
Featured Article: Catastrophe Bonds: A Closer Look
Hurricane season began this month with a below-normal activity forecast from the National Oceanic and Atmospheric Administration (NOAA). NOAA’s 2015 report estimates a 70 percent likelihood of 6-11 named storms (including May’s Tropical Storm Ana), 3-6 hurricanes and 0-2 major hurricanes. However, a “below-normal seasons can still produce catastrophic impacts to communities,” says NOAA Administrator Kathryn Sullivan, PhD., recalling how the 1992 season began with Hurricane Andrew despite a relatively mild forecast.

05/01/2015
Featured Article: The Effects of Fire on Homes on Businesses
Each year thousands of homes and businesses are destroyed by fire. Fires can destroy thousands of acres of property and hundreds of homes before being brought under control. “After a structural fire, engineers often are called upon to determine which portions of the structure can be reused and what needs to be replaced,” writes David P. Amori, P.E., R.R.C., a structural engineer with EFI Global, in his article, “How Hot Is Too Hot?” in the October, 2013 issue of Claims Management. “The ability to reuse components or systems, like the foundation, greatly impacts the time required to rebuild. The answer to the question of what can be reused requires an assessment of the mechanics of the structure and a review of the prevailing building codes,” he says.

04/01/2015
Featured Article: Same-Sex Marriage and the Impact on Claims
Over the past decade, a growing number of states have legalized same-sex marriage. While recent headlines have zeroed in on state politics and policy issues, the shift in legislation also affects claims and how adjusters respond to them. While the U.S. Supreme Court decision in U.S. v. Windsor allows a filing of federal income tax either jointly or separately, some states with state income tax rules may not yet have reached that point. In a December 2013 Best’s Review article, Robert A. Fishbein, a vice president and corporate counsel for Prudential Financial, noted that other court cases have covered the issues of whether employer-provided health care benefits could apply to a same-sex spouse, whether such couples could adopt children or claim them as dependents, whether Social Security benefits could apply (the Social Security Administration “is currently using a ‘state of domicile’ rule, which could mean a disconnect between the federal tax and Social Security rules in the same situations) and how financial institutions might consider such a couple under lending rules.

03/01/2015
Featured Article: Insurance Protection for Cyber Attack Loss
In the previous Take Note, we discussed the rising threat of cyber attacks (hacking). In this segment we explore coverages for both first and third party claims. Once the computer owner recognizes that data has been compromised, the next step is to find out when and how the breach occurred and install software to prevent future breaches. Another consideration is that while data may be “stolen”, it remains inside the system; however, it may have been altered, requiring a byte by byte check for accuracy. While potentially expensive, this necessary action is similar to non-insurable “maintenance costs.”

02/01/2015
Featured Article: A 21st Century Plague: Cyber Attacks
Hardly a week passes without a news report of another major corporation or governmental agency being “hacked”; their data stolen and their customers, or those on their accounts, subject to identity theft and the “cleaning out” of their debt card or bank accounts. Cyber attacks have the potential to be one of the 21st century’s most expensive causes of personal and commercial loss. The problem, similar to many combination property and liability casualties, involves both first party expenses related to the computers that have been hacked and third party exposures to those who have had their personal data stolen. The U.S. Secret Service suggests that no less than 75 percent of American businesses have been targeted for at least one cyber attack in recent years.

01/01/2015
Featured Article: The Polar Vortex
In the movie The Day After Tomorrow, a fictional unprecedented freeze suddenly hit the Northern Hemisphere, killing millions and destroying everything. The reality isn’t quite that severe, but in early autumn of 2014, snow was already falling in parts of the North and West, and Calgary, Alberta was blanketed with snow. The blizzard that accompanied Superstorm Sandy and the harsh winters of 2013 and 2014 set records for low temperatures and heavy snow across the northern half of the U.S. What caused these deep freeze winters? Despite protests from skeptics, many scientists place the blame squarely on global warming.

12/01/2014
Plumb Foolishness: When You Have a Claim You Must Notify Your Insurer
An auto or general liability policy is a contractual agreement in which there are certain requirements on the part of both the insured and the insurance company whenever a claim is made. One is notice to the insurer of a claim or lawsuit, generally “as soon as practicable.” Further, the policy may state, “No insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.”

11/01/2014
Featured Article: When Travelling for Work Who Really Covers Your Car?
In most commercial liability insurance situations the employer, as the principal under the master/servant law of agency, is responsible for the acts or omissions of the employee, as long as the employee is acting within the course and scope of employment. One common exception to this rule is automobile insurance where the insurance usually follows the automobile, not the purpose of the trip, on a primary/excess basis. Thus, as in one California case, all personal coverage on an employee’s automobile, while operating in the course of his or her employment with the employer’s knowledge and permission, is primary over the employer’s excess auto coverage for the employer’s vicarious liability.

10/01/2014
Featured Article: Insurance as Applicable to the Terrorism Peril
Could paying bribes to terrorists to protect commercial interests constitute an insurable risk? The Ohio Court of Appeals determined that the term “accident” in a general liability policy did not apply to the illegal financing of terrorism. Simultaneously, it found that any injuries to or death of claimants that occurred during torture, kidnap and murder by terrorists fell outside of the policy’s territorial limits.

08/01/2014
Featured Article: Responding to Major Storms – Autos and Property Claims
In 2012 Superstorm Sandy devastated New Jersey and New York City causing ramifications that will continue for years to come, especially in underwriting and rating of property insurance policies where properties are near the shore. While much of the extensive damage was to government-owned facilities such as subway lines or to major corporations such as utilities, millions of homeowners also suffered direct wind and water damage and indirect losses due to power outages, and in at least one case, from uncontrollable fire. Few beyond the coastline had federal flood insurance for the water damage, hence many will have to take that need into consideration for future storm losses.

07/01/2014
Featured Article: Contact Sports and Head Injuries
What began in the early 21st century following the death of a famous Pittsburgh Steelers lineman, Mike Webster, turned into bad publicity for the National Football League. Webster’s death became a warning for the entire nation of the dangers of contact sports such as football, hockey, boxing and wrestling and the dangers of head injuries and brain concussions, even for those as young as seven years old.

06/01/2014
Featured Article: Technology Malpractice
As commercial entities turn ever increasingly to technology for practically every aspect of management, from robotic creations and use in manufacturing to artificial intelligence in the selection of new personnel, the design of new software becomes increasingly complex. This was a key problem in the roll-out in October, 2013, of the new Patient Protection and Affordable Care Act by the U.S. Department of Health & Human Services. New software applications are constantly being promoted, but even tiny software errors can create nightmare situations for the entity that designs it or uses it.

05/01/2014
Featured Article: Gun Violence at Schools and Colleges
Learning how to examine a policy of insurance in light of a disastrous claim situation requires the same skills as any major loss or catastrophe. “Schools are locations where children and young adults should be exposed to positive learning experiences and relationships that last a lifetime. It is a place where they should feel completely safe and where good things happen,” writes James P. Smith, a retired deputy fire chief of the Philadelphia Fire Department, in the June, 2013, issue of Firehouse, a Cygnus publication for first responders. As claim adjusters are also among the “first responders” to any major incident, including school shootings, what Smith has to say applies to the insurance industry as well as firemen.

04/01/2014
Featured Article: Adjuster Safety
It takes more than a sign reading, “BE CAREFUL!” to conduct a safety program. It may or may not be sufficient to simply preach “safety,” or warn of dangers. “Many firefighters use the term ‘Stay safe!’ with fellow fire-fighters,” says Battalion Chief John J. Salka, Jr. of the New York Fire Department in the October 2013 issue of Firehouse, a Cygnus publication for firemen and emergency first responders. “It is a common phrase that many of us use casually, and sometimes I think we say it without actually knowing what it means.” To a great extent adjusters are a part of that industry, and are often on the scene of fires, wrecks, hazardous material spills and other disasters at the same time as emergency responders.

03/01/2014
Featured Article: Robotics in Our Future
Robotics are taking over an ever-increasing number of jobs formerly done by humans, according to a 2013 CBS 60 Minutes report. This is an advantage for the corporations that use them, but it may leave too many humans on the unemployment line at a time of high unemployment. Robots cost only an average cost of $3.20 an hour to build and operate, and many can be reprogrammed to do tasks other than what they were originally designed to do. Hence they are cheaper than Asian labor, and jobs are coming back to America, just not to American workers. Robots don’t take lunch breaks, vacations or sick leave, nor do they require insurance or a pension. When they’re worn out, they’re recycled for their parts. They currently run warehouses, hospitals, food preparation and just about everything else, and even robotic surgery is now quite common, although with a trained surgeon at the robot’s controls.

02/01/2014
Featured Article: Cyber Security and Privacy Issues
The security leaks and information provided by Edward Snowden brought the entire subject of cyber security and privacy to the public’s attention. Who is listening to us or monitoring our communications? Unfortunately, it is not just the National Security Agency. Cyber thieves and hackers are doing more than listening, as we have recently seen with the data breaches of at least two major retailers and the possibility of others still looming. Hackers are stealing data, and that theft threatens both personal finances and the national economy. A recent study by the Ponemon Institute of nearly 5000 Information Technology and IT security professionals from the U.S., U.K., France, Germany, Japan, China, India, Australia and Brazil revealed that 60% of companies had a network security breach in 2012 and that 34% of those companies had experienced more than one breach.

01/01/2014
Featured Article: Exploring Explosion Claims
At least annually an explosion somewhere in the United States or Canada temporarily becomes a media event. Explosions devastate entire cities, as occurred in 1946 in Texas City, Texas in the Grandcamp ship explosion, the 1917 collision of two war ships carrying explosives in the Halifax harbor, and almost in the 2008 Savannah, Georgia, sugar plant explosion. Many such explosions have involved materials such as grain dust, sugar, and fertilizer, the primary ingredient in the bomb that destroyed the Federal Building in Oklahoma City in the 1990s.