Let’s consider the following:

  • How many public adjusters and lawyers do you know who routinely represent policyholders on claims that total less than $500?
  • How many public adjusters and policyholder lawyers do you know who refuse to resolve any claim unless the carrier pays for every lower-value damaged component in the roofing system?
  • What if a means existed to efficiently prosecute smaller claims that are not typically prosecuted because the costs are likely to exceed the benefits?

Aggregate Litigation

All aggregate litigation involves claims held by many persons for combined resolution.1 I like to think of it as taking lots of smaller or similar claims, putting them all together, and making the bad guys pay for not doing the right thing.

Aggregate Litigation typically involves one of the following proceedings:

  • Class Actions
  • Mass Actions
  • Multidistrict Litigation.

For this initial post in our series on Aggregate Litigation, we begin with a general discussion of Class Actions. Upcoming posts will delve deeper into specific class action issues, in addition to addressing general and specific issues related to Mass Actions and Multidistrict Litigation.

Class Actions

A class action is often defined as a lawsuit filed on behalf of a group, or “class,” of individuals with similar legal claims. Although class actions sometimes receive less than glowing reviews, they exist because the offer benefits unavailable to single litigants.

Smaller Claims, Often Not Otherwise Maintained

To further consider the examples at the very beginning of this post:

What happens, then, to the policyholders who have lower-value claims? Once we investigate to determine whether all the requirements for a class action are satisfied,2 we may be able to help the policyholder (and countless others in the same predicament) by utilizing a class action. Class actions often involve combining smaller claims that won’t justify the time and expense necessary to prosecute each claim on its own merits.

The Great Equalizer

Additionally, class actions can equalize the difference in power between well-funded insurance carriers and individual policyholders without significant resources to stand up for their rights. As a group, individuals strengthen their ability to litigate, negotiate and settle disputes.

Collective Effort

I know lawyers who work by the motto “One Riot, One Ranger.” They enjoy and work best if they are the only lawyer that does substantive work on their files.

I also know lawyers who thrive as part of a team. They work best when fitting pieces together in a collaborative effort that makes the best use of their particular skills.

This is a picture of me with my friends Adam Moskowitz and Bob Neary:

Adam Moskowitz, Phillip Sanov, Bob Neary

We often work with Adam and his team on class action cases. In fact, I can’t imagine investigating a new potential class action case without at least seeing if Adam and his folks are interested.

I relish the teamwork approach in virtually every important event in life, particularly in my work. That’s probably a key reason I appreciate first-party claims work for policyholders in general, since prosecuting claims almost always involves a team with some combination of lawyers, public adjusters, roofing contractors, engineers, and meteorologists.

If you have smaller claims that may not make sense to prosecute individually, they may fit the requirements for a class action. If lower value components aren’t being covered in claims when they clearly should be replaced, class action might be a solution. Combining many smaller and virtually identical claims could give policyholders the power needed to stand up to an insurance carrier.

Motivational Poster For Today:

I train for and race in lots of triathlons. I am a huge fan of mantras and motivational sayings to get and keep me going. I hope it helps you, too:

I guess it comes down to a simple choice, really

 


 

1 “Aggregate” is defined as “formed by combining into a single whole or total” (Black’s Law Dictionary with GARNER, B.A., St.Paul., Minn., 1999, p. 66).
2 Rule 23 of the Federal Rules of Civil Procedure, and its state-by-state counterparts, outlines the prerequisites, types, and procedures for class action proceedings. I will address these components as we go through the Aggregate Litigation series.

  • Perhaps public adjusters should utilize small claims court more frequently. Since we have a percentage interest in the claim, we can be co-plaintiffs with the insured. If the insured files in only their name, the court may prohibit the public adjuster from arguing the case, however, filing in both the insured and PA name (as long as the PA is not a corporation)seems to be the way to go. Note that jurisdiction can be claimed anywhere the insurer has an office, and an appointed agent of the carrier can be considered a defendant’s location. Many small claims courts in towns only allow a $3,000 limit but in cities the limit is typically $5,000. This is also a good way to recoup some legitimate additional ALE or item that the insurer is refusing to pay. Because the insurer is usually a corporation, they must send legal counsel to small claims and often the case resolves merely by filing so that the carrier can avoid legal fees.

  • I agree with Bob D’Amore’s methodology, as I have seen it work many times, and Mr. D’Amore was the one who originally taught this to me. For States that have lower PA fee caps, this method does not resolve the “small loss” issue in its entirety, but does offer a venue to assist some homeowners whom would normally not be able to retain a PA.

    And regarding the original post, I look forward to the upcoming series on Aggregate Litigation.

    Thomas Di Sieno
    Digitory Solutions, Inc.
    http://www.digitorysolutions.net