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Michael K. Kiernan
2023 Forecast For Extra Contractual Developments By Michael K. Kiernan, Andrew B. Downs, and Linda Knight
Set forth below are some trends we believe we will be forced to address in 2023 and beyond, in both the first-party and third-party arenas. This list is by no means meant to be exhaustive nor is it arranged in any particular order.
First-party Forecast:
1. Company’s internal file hygiene continues (Yes! After all these years and countless training sessions...) to be a significant problem. Not only in terms of the actual content of claim notes but record keeping as a whole. This may very well lead to an increase the need for more PTS searches to locate missing documents.
2. Perhaps one of the unanticipated effects of the pandemic was that it greatly reduced the number of “boots actually on the ground” in claims handling, and the resulting information gap is going to continue to cause problems. This lack of actual face-to-face contact has invariably led to an increase in the utilization of emails and text messaging in the claims handling process. The loss of good “bedside manners” plays right in to the hands of smart policyholder lawyers and public adjusters who will increasingly easier to set up the claims handler – in writing. Claims of “You never returned my call...” are now more routine than ever.
Third-party Forecast:
• Nuclear Verdicts:
Remember the good old days when liability limits of $1M seemed more than sufficient? As we have all seen over the past several years, especially since the pandemic, multi-million dollar verdicts/settlements are now the norm. As one veteran defense counsel (who tries cases in a particularly liberal jurisdiction) recently observed, “I can still win and get a defense verdict, but now when I lose, I lose BIG!”
Indeed, although not an everyday occurrence, it is no longer abnormal to see a 9-figure settlement or verdict. It can be safely assumed there are far more of these types of settlements than one can imagine since they have strict confidentiality and thus never publicized.
Here to provide context, are a few recent examples of these “nuclear” or at best, “outrageous” verdicts:
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Andrew B. Downs
Extra-Contractual Liability Law
Linda Knight
FDCC ANNUAL INSIGHTS 2023