America is the most litigious nation on earth. American ju- risprudence is patterned on British “common law”
and follows much the same rules
as in our colonial days. Concepts
such as “innocent until proven
guilty,” right to a jury trial of one’s
peers, right of appeal, and the difference between civil and criminal standards (“preponderance of
the evidence” versus “beyond the
shadow of a reasonable doubt”)
and all those Latin phrases (res
gestae, res ipsa loquitor, stare decisis (reliance on precedent) and
habeas corpus (a writ requiring
appearance before a court) and rules such
as the ability to plead the Fifth Amendment to the Constitution are blessings of
our judicial system. Should these rights
be suspended, we are in trouble.
The best part of American jurisprudence (stare decisis notwithstanding) is
that our courts can change their minds
on certain issues. If that were not the
case, the infamous Dread Scott pre-Civil
War Supreme Court decision would still
permit atrocities in the name of the law.
Consider that in the 1960s most states
had “contributory negligence” laws that
would bar a tort claim if the plaintiff was
one iota at fault; today only a small handful of states retain that rule, the rest using
some form of comparative negligence tort
rules. That’s why claim investigators’ understanding of the law remains so important if the spirit of the law is to be attained.
What many of us fail to understand
about American jurisprudence is that our
courts do not exist to find “truth;” they exist to give each side of an issue an opportunity to present its position, right or wrong.
The courts simply determine which posi-
tion seems most correct. The results may
not always be fair. We may have our day in
court and still feel cheated.
The Devil’s Advocate
One of the most common sources of
confusion revolves around the word “
ambiguous.” This column has cited that early
16th century London case of Gybbons v.
Martin in which the beneficiary of a life
insurance policy and the underwriters
quibbled over the meaning of the words
“one year.” The Court ruled for the claimant as it was the underwriters who wrote
the policy. Lawyers and politicians can
easily argue over the meaning of what “is”
is. The most dangerous disease for adjusters is even a mild case of “assumption.”
We can assume nothing. Every word we
say or read must be verified.
No matter how horrendous a situation
may seem, every party involved is entitled
to counsel, and every position, no matter
how bizarre, may be placed before the
court. The general rule is that the plain-
tiff (or in a criminal case, the state) must
prove its position with valid evidence that
under the U.S. Supreme Court
decision in Daubert v. Merrell
Dow Pharm. Inc., (509 U.S. 579
[Sup. Ct., 1993]) must be sci-
entifically verifiable. That is the
plaintiff’s burden. The defendant
is entitled to challenge that evi-
dence. The result is supposed to
be “truth.” But is it truth?
Each party testifying before
the court will be sworn to tell
the truth, but as any adjuster
with any experience at all knows,
Joseph Pulitzer, the St. Louis newspaper man for whom the annual prizes are
named, said that the three most important things in journalism are accuracy,
accuracy, and accuracy. The same applies
to insurance claims. The adjuster’s three
most important factors are coverage, coverage and coverage. The insurer’s coverage must be applicable before any claim
is paid or lawsuit defended. Coverage is
the most important factor in any type of
claim. If there is no coverage, then liability and damages do not matter.
Next month we will continue our review
of litigation and its prevention through
the art of adjustment, and gain a better
understanding of what litigation is.
Ken Brownlee, CPCU, is a former
adjuster and risk manager based
in Atlanta, Ga. He now authors and
edits claims-adjusting textbooks.
and Court Decisions — Part 1
American jurisprudence is often not what we anticipate