the taking of your deposition
altogether. This is particularly
true where the dispute revolves
around the meaning of the
Virtually every state in the
country views the interpretation of an insurance policy as
a question of law. Courts are to
consider the plain meaning of
the words contained in the policy and apply them to the allegations of the complaint. If any
of those allegations fit within
the coverage terms, there is a
duty to defend, and where liability is imposed for a covered claim, a duty to indemnify. If none of the allegations
fit within the coverage terms,
there is no duty to defend or
indemnify as a matter of law.
Your opinion on the meaning
of contract language is irrelevant; nothing you say or do not
say will affect the court’s legal
ruling where the sole dispute
concerns the policy language.
Sometimes, there may be a
question about whether the insurer properly investigated the
claim to determine whether
the allegations fell within the
policy terms. In those cases,
your deposition may be relevant.
Depositions are most likely
to be relevant in “bad faith” litigation where claims-manage-ment is the focus. If the claims
representative did not properly
handle the claim, or made decisions favoring the interests of the insurer to the
detriment of the insured, or committed
some egregious act, then the adjuster’s
actions and motivations are relevant.
But if there is no coverage to begin
with, counsel may still be able to successfully object to the deposition by convincing the court that claims-handling was
not the cause of any damage given the absence of coverage. Alternatively, and depending on the jurisdiction, counsel may
be able to persuade the court to delay the
deposition until the threshold question of
coverage has been decided.
When it comes to insurance coverage litigation, claims representatives and their supervisors should expect
to be deposed by opposing counsel. These
depositions, if relevant and well-prepared,
can be critical to a successful case. Here are
five tips for achieving that result.
1. Make sure the deposition
On receiving a notice of deposition, your
first step should be to discuss the relevancy
of your testimony with counsel. If your
testimony will not produce information
relevant to the issues to be decided by
the court, counsel may wish to object to
5 Ways to Prepare
By Julie E. Nichols, Esq., and Deborah A. Hebert, Esq.