I have been practicing Commercial Insurance for approximately 50 years and the usual disdain received from an insured is “Why am I paying so much for Insurance?” Once the claim comes…“Why is the Insurance Company paying so much for this claim?” Typically, these are just human reactions that occur out of frustration from a system that has developed in the United States for insuring risks.
I am very sympathetic to your feelings; as being insured by an Insurance Company you must deal within that system and when you do so, deal in a manner that gives you the highest potential for prevailing in your quest for some change or moderation by your Insurance Company.
When an Insurance Company accepts a claim, including defense and indemnity, they have a fiduciary liability to you to act in good faith and fair dealing and to attempt to settle the claim within the limits of the policy coverages. With the latter said, that is their only obligation. Typically when a litigated claim is accepted for defense and/or indemnification the Insurance Carrier will assign an outside attorney to handle the case. This means that you have been served with a lawsuit or a demand for mediation or arbitration. This outside attorney is paid for by your Insurance Company but is beholden to you. In other words, that party is “your attorney” even though he is paid for by your Insurance Carrier… Well that’s a good thought and that is what it appears to be but that is not what it is in reality. In reality, most of these attorneys who are hired by the Insurance Carrier represent the Carrier in many other matters on behalf of the Insurance Company assigning them cases with the defense of their insureds. That means that these attorneys generally act a bit differently than if they were being paid by you directly. You need to be very clear with the new assigned
attorney that they may not interact with your Insurance Company as regards to the status of your case, or requesting permission to take certain actions without you being copied into that correspondence so that you know what is going on between your Insurance Company and that attorney. This gives a better ability to be involved in the defense of the case. Now let’s discuss.
You need to lose the thought that you can control the case as to the settlement of the issue. Many times you feel that you have little or no liability and that the Insurance Carrier does not want to continue the fight for you but rather to settle and to settle for an amount that you feel is excessive. While it is fine to civilly discuss this issue with your attorney, the Insurance Carrier, except for certain policies has no obligation to you to continue to defend a case if they can settle it.
Some people will now say “Well I have a deductible and it’s not fair that I don’t have a say with the Insurance Company”. Unfortunately, your deductible is part of the policy and you have no control if the Insurance Company attaches your liability to that deductible for payment.
Last of all, some States require that if there is an apparent “conflict of interest” that you may have the ability to ask the Insurance Carrier to assign another legal counsel at their expense to you. This is a very difficult process but does arise and you will need to have consulted your own attorney at your expense if you wish to really pursue this avenue with your Insurance Carrier.
That is the way we do it at Bone Robertson & McBride Inc.
Good health to you.
Don Bone, President (800) 510-1095 – For Questions