Be Careful Who You Select as an Expert in a Coverage Case
Forty Years as an Adjuster Does Not an Admissible Opinion Make
Experience may make you qualified to testify as an expert. But only laying a proper foundation by translating that experience into knowledge of accepted industry practices will get your opinion into evidence.
The District of Massachusetts recently allowed an insurer’s motion to strike a policyholder’s claims handling expert because he did not adequately link his opinion to industry standards.
The parties disputed who was responsible for defense counsel’s fees incurred handling the policyholder’s affirmative claim against a subcontractor. To establish that the insurer failed to meet its defense obligations by neglecting to provide clear instructions to defense counsel regarding the action against the subcontractor, and failing to institute appropriate reporting requirements and billing procedures, the policyholder offered the report of its expert on summary judgment. The report asserted that defense counsel had been led to believe that the insurer had authorized and would pay for the suit. The expert was a forty-year claims handling veteran.
A judge’s role as a gatekeeper under Daubert and Kumho Tire applies both to scientific experts and to experiential experts. Here, the judge looked for an indication that the practices the expert advocated were standard in the industry, and for a link between those accepted practices and the facts of the case. He found neither. The expert did not identify any manuals, publications, or other definable industry best-practices. Instead, his opinion boiled down to an assertion that the insurer’s handling of the engagement of counsel was not consistent with proper, fair or prudent claims handling practice. The judge allowed the insurer’s motion to strike.
It may have been difficult to find industry-wide authority for the specific practices at issue here, where the scope of defense counsel’s work changed during the course of the underlying claim. It’s not clear to what extent the expert detailed his experience with the specific conduct at issue and the existence of industry standards, but, in the absence of relevant manuals or publications, that would have been a course worth pursuing. For example, “I have worked for five liability carriers and interacted with dozens of others, and each of them had a regular practice of requiring a letter clearly specifying the scope of defense counsel’s assignment at the beginning of the representation and in the event it changed.”
The case is Barletta Heavy Division, Inc. v. Travelers Ins. Co., Inc., United States District Court for the District of Massachusetts Civil Action Number 12-11193-DPW (October 25, 2013).
About Harvey: I specialize in Insurance Law and Litigation at Anderson & Kreiger. My most recent post for Between the Lines discussed the National Floor Insurance Program’s effect on rising insurance premiums for businesses.
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Posted In: Claims Handling and Settlement