Property Insurance Coverage Law Blog : Florida Insurance Lawyer & Attorney : Merlin Law Group Law Firm : Tampa, Houston, Coral Gables, Gulfport

This point was emphasized again in a blog by Ronald D. Kent, Lawyer Cannot Testify as Expert in Bad Faith Case Where Lawyer’s Background Is Not Relevant To Issues in Case, where he noted a bad faith case Butler v. First Acceptance Insurance Co., 652 F. Supp. 2d 1264 (N.D. Ga. 2009), He quoted the significant part of the Court's ruling:

Mr. Jenkins is not qualified to provide expert testimony on the standard of care for a claims adjuster receiving a time limited demand letter. Mr. Jenkins is an attorney who has represented parties in personal injury and insurance litigation for over 30 years. He is co-author of Georgia Automobile Insurance Law, Including Tort Law. Mr. Jenkins was retained as an expert in a Georgia state court case involving a tortious failure to settle claim. The court notes, however, that Mr. Jenkins has never worked in the insurance industry, nor has he litigated a tortious failure to settle case. While an expert may be qualified based on "knowledge, skill, experience, training, or education," the court finds that Mr. Jenkins' extensive background is not relevant to the legal issues here. Mr. Jenkins' experience relates to personal injury and insurance claims in general. Mr. Jenkins admitted that he never litigated a tortious failure to settle claim and therefore his background does not match the subject matter of this suit. Further, because Mr. Jenkins lacks the qualifications necessary to opine in a tortious failure to settle case, Plaintiff cannot explain how Mr. Jenkins' experiences lead to the opinions he has offered in this case. Nor can Plaintiff show that Mr. Jenkins' testimony would offer the jury any more than what Plaintiff's counsel could argue in closing arguments. Finally, the court notes that the great bulk of Mr. Jenkins' proposed testimony sets forth legal standards for insurers under Georgia law. The jury, however, is not to receive its instructions of law from a party's expert, rather it receives them from the judge. For these reasons, the court concludes that Mr. Jenkins is not qualified to offer his opinion in this case because his area of experience is not relevant for the issues in the litigation and will not aid the trier of fact. (emphasis added)

I disagree with the Court regarding the jury instructions because experts can help prove the legal duties of claims adjusters and insurance companies which should be part of the jury instructions. As I indicated in Claims Magazine and the CPCU Designation are Worthy Educational Investments for Claims Professionals:

Imagine you wanted to find out how insurance adjusters are supposed to do their job. Insurance company attorneys argue an adjuster’s job is a legal duty, and not for determination by the adjusters. Their argument is circular and flawed: how does the law know what an adjuster is supposed to do without knowing the standards and duties from adjusters themselves?

The American Institute for CPCU provides the most recognized and important designation for claims professionals. The Society, with materials from the American Insurance Institute, has an intense learning process dedicated to a high standard of ethical and policyholder centered claims treatment. The Claims Magazine article notes that claims professionals "are often called upon to testify in legal proceedings."

Our firm often cites to CPCU educational materials as proof of insurance industry standards and interpretation of contracts.

Still, the opinion is warning about the types of experts needed in a bad faith case. Experienced Claims Adjusters May Make Better Insurance Claims Experts Than Attorneys. I have suggested to a number of experienced adjusters that they should study and apply for a CPCU designation so they could be more easily considered as an expert witness.

Genuinely helping others to the best of your ability at a time of catastrophic trouble is “noble.” The insurance industry recognizes that its claims adjusters obtain a satisfaction in their occupation that goes beyond a mere paycheck because of the importance of properly conducting the claims function. Many of the books written by insurance companies which explain their history proudly describe instances where claims activities were carried out, despite great personal hardship to the claims adjusters, so that the promise of the insurance contract-- prompt and full indemnification—
was fulfilled.

Claims representatives are taught honest and honorable ways to handle claims. The standard textbook for claims handlers, which leads to an Associate in Claims designation, was historically James J. Markham, et al., The Claims Environment (1st ed., Insurance Institute America 1993). There is now a revision to that book. Doris Hoopes, The Claims Environment (2d ed., Insurance Institute of America 2000). These textbooks for claims handlers and students of insurance set forth simple, clear claims handling principles that highlight duties of ethical and good faith treatment owed to policyholders.

Indeed, the Insurance Institute of America has published a treatise dealing exclusively with this basic relationship. William Park Rokes, Aggressive Good Faith and Successful Claims Handling (1st ed., Insurance Institute of America 1987). In another claims management reference which specifically discusses ethical behavior, the Insurance Institute of America provided:

The business of insurance, perhaps more than any other, is based on trust and commitment. Insurance products are intangible and simply reflect a promise on the part of insurance companies to indemnify insureds for financial losses if an insured event occurs in the future. The contract between the insurer and the insured is a contract of utmost good faith and requires honesty and trust from both parties.

George A. White, Ronald Duska & Victor D. Lincoln, Organizational Behavior in Insurance, vol. 1, 62 (1st ed., Insurance Institute of America 1992).

Many, if not most, executive claims managers possess the Society of Chartered Property and Casualty Underwriters designation, CPCU. A CPCU agrees to abide by the Canons of the CPCU Code of Professional Ethics, which include, in part:

CANON 1: CPCUs should endeavor at all times to place the public interest above their own.

CANON 2: CPCUs should seek continually to maintain and improve their professional knowledge, skills and competence.

CANON 3: CPCUs should obey all laws and regulations; and should avoid any conduct or activity which would cause unjust harm to others.

CANON 4: CPCUs should be diligent in the performance of their occupational duties and should continually strive to improve the functioning of the insurance mechanism.

CANON 5: CPCUs should assist in maintaining and raising professional standards in the insurance business.

CANON 6: CPCUs should strive to establish and maintain dignified and honorable relationships with those whom they serve, with fellow insurance practitioners, and with members of other professions.

So, to those who suggest that claims handling is not supposed to be a “noble” occupation, you may be unfamiliar with these guidelines or may not have witnessed noble conduct.

For public adjusters, I did not mean to suggest that the public adjusting certifications were not to be obtained. Instead, I would also suggest public adjusters obtain the AIC and CPCU designations as well either the CPPA or SPPA designation. What is the downside to being better educated? Public adjusters should strive to obtain the NAPIA sponsored certifications which are described as follows:

The Certified Professional Public Adjuster (CPPA) and Senior Professional Public Adjuster (SPPA) designations are awarded to public insurance adjusters who have met specific experience and educational requirements, completed a qualifying examination prescribed by a Board of Examiners, and subscribe to a code of ethics for business and professional conduct. The program is sponsored by the National Association of Public Insurance Adjusters (NAPIA).

The Certification program requires experience and credentials—it is not as easy as simply taking a test:

The CPPA/SPPA designations are awarded by NAPIA. The American Institute for CPCU / Insurance Institute of America (AICPCU/IIA) is responsible for administration of the examinations.

Candidates are required to have at least five (5) years experience in adjusting on a full-time basis to sit for the CPPA examination. Ten (10) years full-time adjusting experience is required to sit for the SPPA examination.

Applicants must have a college degree or its equivalent in education, experience, or knowledge. Applicants who are not college graduates or who cannot obtain acceptable educational credentials should write to the Board of Examiners at NAPIA regarding methods of establishing the equivalent.

Obtaining and maintaining peer reviewed certifications is not easy, but I feel that it is worth every penny and minute spent. I believe my own experience in becoming a Florida Bar Board Certified Civil Trial Lawyer is well worth the time and money. Attorneys are ethically prohibited from advertising as being “specialists” except for few exceptions. This is what the Florida Bar says about my Certification:

While all lawyers are allowed to advertise, only certified attorneys are allowed to identify themselves as "Florida Bar Board Certified" or as a "specialist." Certification is the highest level of recognition by The Florida Bar of the competency and experience of attorneys in the areas of law approved for certification by the Supreme Court of Florida.

A lawyer who is a member in good standing of The Florida Bar and who meets the standards set by the Supreme Court of Florida, may become a "Board Certified Civil Trial Lawyer."

Certified lawyers in civil trial law deal with litigation of civil controversies in all areas of substantive law before state and federal courts, administrative agencies and arbitrators. In addition to actual pretrial and trial process, civil trial law includes evaluating, handling and resolving civil controversies prior to the initiation of suit.

Every board certified civil trial lawyer has practiced law for at least five years and been substantially involved -- 30 percent or more -- in the area of civil trial law during the three years preceding application. To be certified, the lawyer is required to have conducted at least 15 contested civil cases in courts of general jurisdiction during the lawyer's practice, including cases before a jury and as lead counsel….

Each certified lawyer must also have passed peer review, completed 50 hours of continuing legal education within the three years preceding application and passed a written examination demonstrating knowledge, skills and proficiency in the field of civil trial law to justify the representation of special competence.

Board certification is valid for five years, during which time the attorney must continue to practice law and attend Florida Bar-approved continuing legal education courses. To be recertified, requirements similar to those for initial certification must be met. Not all qualified lawyers are certified, but those who are board certified have taken the extra step to have their competence and experience recognized.

When you are engaged in jobs that are intertwined with helping others in distress and at their most vulnerable moments, why wouldn’t you want to be as well trained as you can be? Why would anybody suggest that the alternative is better? Do yourself, your career, and the public a favor and invest in educational and ethical training that promotes the highest ideals of your profession. 

In the insurance world, parties often demonize their opposition. I suppose that I am as guilty as anybody--but just because somebody disagrees and advocates a position opposed to yours does not make them unethical or deserving of ridicule.

The Insurance Journal has a Webcast of CPCU President Marvin Kelly regarding the bad rap many well meaning and dedicated professionals get in the insurance industry. The CPCU Society has an exemplary Code of Ethics and stellar educational program. Many CPCU's are in claims management and dedicated to serving their company's policyholders.

Since my legal practice and work for policyholders generally involves claims denials and problems, I am surrounded by situations where the insurance industry is (I argue) wrong. I do not always recognize the things insurance companies do that benefit individual customers and society. There are occasions when we get retained immediately following a loss and the claim runs smoothly from the beginning to end, with the policyholder being fully indemnified, happy, and the relationships between us and the insurer are professional and very cooperative. Those instances do not make the paper, and even I admit we fail to give enough credit to those insurance adjusters and attorneys in the trenches that do their job professionally and ethically day after day.