The Insurance Scrawl Blog had an interesting analysis on the value of discovering an insurer's reserves on a claim, entitled Discovery of Insurer Reserve Information: Implied Admission of Coverage or Attorney Work Product ? Or Both? This posting also addresses another analysis on reserves by Mark Mayerson entitled Discovery of Insurer Reserve Information . Here is the West Viriginia Supreme Court Case mentioned above - West Virginia ex rel Erie Ins. Prop. & Cas. Co. v. Mazzone (W. Va. Nov. 30, 2005). Keep in mind, these are pro-insurer postings.
How many times have you attempted to settle a claim for underinsured or uninsured motorist benefits, and the insurer makes an offer and draws the line forcing you to file suit. Then when you file suit, the insurance defense lawyer throws in the boilerplate defenses of the claim is subject to all of the terms, conditions, and exclusions of the policy and even denies the tortfeasor was either under or uninsured. News to you, eh?
Some ways to avoid this retrenching and infuriating defense is to make that an assumption during negotiations and addressed specifically in the settlement demand to the insurer, to wit: if there are any policy defenses or coverage questions, as well as any assertions or claims that the adverse driver was not uninsured, then please advise in writing immediately, else we will assume there are no fault, liability, or coverage issues. Of course, you can try and close this door even before submitting all of the medicals and specials. If the insurer is going to hide upon a policy defense, then why do they need all these extraneous materials. First things first.
Now, this article makes the reserves an additional bit of information in support of the elements of a contractual uninsured motorist claim, but also the foundation of a statutory unfair claims settlement claim. Heck, it might even be a Rule 11 issue in their responsive pleading when the only thing admitted is that the defendant is an insurance company authorized to do business and everthing else is either denied or insufficient knowledge to admit or deny (and therefore denied!).
Another aspect of the kitchen sink denial in un/underinsured claims is that the insurer already has probably made medical and lost wage benefits payments and now their insurance defense lawyer avers not hurt or no causal relationship with the accident and the injuries. But that is another thought for another time.
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