Certainly coffee sold by a mom-and-pop cafe would not have reaped the
same figure, even for comparable injuries from the same eight-ounce cup.
Despite real injuries, the Liebeck case
has since been on top-ten lists and was
even a Seinfeld plot. (In the Liebeck case,
the award was reduced by the judge to
$480,000 and settled out of court for an
For insurance carriers, such deep-pocket precedents can be devastating.
News of the Liebeck verdict spread like
wildfire. An editorial in the San Diego
Union Tribune stated:
“When Stella Liebeck crumbled her
coffee cup as she rode in the car with
her grandson, she might as well have
bought a winning lottery ticket...Our
guess is that other greedy copycats
in restaurants throughout America
soon will be happily dumping coffee
in their laps in a bid to make similar
killings in the courtroom.”
So there are juries who have made up
their minds before hearing any facts,
judges telling insurers to “fork it over,”
and multimillion dollar awards because
it’s merely a few days’ earnings. How can
honest, diligent insurance carriers possibly persevere? Insurers’ employees, adjusters and agents work to demonstrate
the utmost good faith. So what can insurers do if the other players already have a
bias against them?
If prejudices exist, it is important to
understand the source. They could be
drawn from media coverage involving
large carriers or corporate liability cases
(Phillip Morris, GM’s extensive recalls.)
Even in the entertainment trade, books
and movies such as John Grisham’s The
Rain Maker depict an exaggerated bad
faith insurance carrier — and should be
required reading for new claims adjusters
(on what not to do).
Changing the perception
When potential jurors report for duty,
the insurance company may be a faceless,
multibillion-dollar conglomerate. On the
other side, the plaintiff is a wounded hu-
man; perhaps someone who looks like
their aunt, uncle, daughter or their favor-
ite teacher. In this writer’s experience, the
cliché can hold true: the defense may be
characters in immaculate suits, display-
ing staunch poker faces. Consider the
first trial you observed and being told
not to make any expressions or show any
emotions. Unfortunately, this may have
sent the wrong message to the jury.
Insurers can combat any bias by proving
what upstanding, professional humans
we are. Our companies are not faceless
entities. It is crucial to begin demonstrating this instantly during voir dire,
and then proceeding with the case with
warm people at the table representing our
During voir dire counsel should carefully probe for any biases. Questions in
the spirit of: Have you ever had a prior
claim with this carrier? What feelings
do you have about this carrier? Would
any feelings affect your evaluation of the
facts? Do you agree that insurance companies, as well as people, are entitled to
a fair trial?
It is essential to put a human face on
the company. A knowledgeable, appeal-
ing representative seated at the defense
table from voir dire through closing argu-
ments can help in an effort to focus on the
people who are part of the carrier rather
than just a commissioned “legal team.”
It’s unreasonable to have the president
of the company or claims department
attend the trial, but a carefully-selected
representative who’s amiable and famil-
iar with the claim, can be a “face” for the
company to the jury. It will be vital to
have the defense become acquainted with
the representative in preparing the case.
If executed properly, this person should
exhibit the opposite of a cold, impersonal
Another cliché to dispel: appearing
argumentative or defensive. It may add
drama on television to have the attorneys shout “I object!” However in the real
world, excessive objections can be viewed
by a jury as trying to bar a witness from
sharing information or trying to keep evidence hidden.
Motions made in limine should be considered to avoid unnecessary objections
during trial. The motions can be presented in advance to preclude certain questions from being posed in the first place.
Motions in limine may include prior offers of settlement, expert testimony, evidence not permitted due to statutes, and
the like. Or more significantly, the defendant’s net worth on a punitive case can be
deliberated in advance.
There is value in working harder to
soften the perception of large carriers.
Through the innovation of social media,
new generations can see the wonderful
ways in which carriers help those in need.
From an advertising standpoint, images
are already shifting. In an industry that
had been known as a humorless commodity, commercials are creating smiles.
From the trailblazing ads of State Farm to
the Geico gecko and Progressive’s “Flo,”
views are changing through outlets that
did not exist 20 years ago.
Being cognizant that biases exist is the
first step to remedying them. Handling
claims with the utmost good faith and
top-notch service can soften insurance’s
image one claim at a time. If it gets to the
point of a lawsuit and then trial, insurers can carefully select juries and provide
the best presentation of facts, with real,
knowledgeable people at our side.
And maybe one day, law schools will
no longer encourage the legal tactic of
Richard Wickliffe, CPCU, ARM, CLU,
is a 25-year insurance professional in
leadership at one of the nation’s largest
insurance carriers. He enjoys writing and
speaking about unique claims trends and
his articles have appeared in National
Underwriter and SIU Today. He can be
reached at RLWickliffe@yahoo.com.
In addition to liability,
as part of a deep pocket
bias, jurors may take the
financial strength of a
company into account
when quantifying an
award. This can include the
company’s status, size and
recent media attention.