Natural adversaries, insurance companies and plaintiffsattorneys, appear stuck in an endless game of chicken. And tosucceed in that game, it helps to have a resume that is "somewhatconvincing," according to Ronald Weil of Miami firm Weil Snyder& Ravindran, which specializes in sex-abuse lawsuits.

Insurers wrestle with so-called nuclear verdicts, which theindustry describes as social inflation: Runaway jury verdicts havebeen on the rise for 10 years. But in Weil's experience, insurersassessing liability tend to hold onto their money, allowing it tocollect interest until the last moment.

"They're very often not willing to resolve the case, as we putit, until we see the whites of their eyes, which is, 'Suddenly,we're going to trial,'" Weil said. "Then a lot of these cases thatwe're dealing with will settle up before trial."

In some cases, Weil says, insurance carriers have"dared" him to go to trial, after refusing to settle despite hugeamounts of coverage. "In one case, we got a $12.5 million verdictwhere there was $6 million in coverage, and the insurance companyhadn't really done anything to resolve the case previously," Weilsaid.

Insurers do their utmost to make litigating against them hardwork, according to South Florida personal injury attorney BryanHofeld of Schlesinger Law Offices, which landed two of the highestpremises liability and auto accident verdicts of 2019. "They put upas many obstacles as they can and try their best to make sure, ifthey can, that you're not successful, or to mitigate or to reducetheir exposure to liability," Hofeld said. "That is absolutely notan exaggeration when you're talking about liability of insurancecarriers."

The best way to respond to that, in Hofeld'sexperience, is to make it clear that a jury trial is avery real possibility. "They've got to know that you are a lawyerwho is perfectly willing and able to try your case if necessary,"Hofeld said. "Because, at the end of the day, they know thatthey're going to have to be reasonable and fair with you, otherwisethey're going to have to take on significant risk by going totrial, then they lose control of what happens and it's up to thejury."

In the background, both sides avidly researchone another, analyzing wins and losses in previous cases,according to Hofeld, who said it helps if insurers see you're nostranger to the courtroom.

'Sniff That Out'

Atlanta attorney Andrew Rogers of Deitch & Rogers,who helped obtain a $60 million verdict for a girlsexually assaulted at a treatment center, has come to thesame conclusion.

"Frankly, a law firm that has a proven track record of going totrial and holding defendants accountable, I think, get more seriousconsideration from the insurance companies," Rogers said.

It's important to establish that credibility, as it's all aboutexpressing confidence and an open mind, according to Weil. "Ifyou're not willing to do that, then the insurance companies cansniff that out, and what you end up doing is compromising goodclaims because of the concern that maybe you're not going to beable to deliver at trial," Weil said.

Few attorneys are willing to admit which insurancecompanies they don't like dealing with, noting that cordiality canvary depending on the skills of an individualadjuster.

But Weil says veteran-focused USI Insurance Services has oftentaken a fair approach to cases involving home insurance over damagecaused by cast iron pipes. It's an issue he says insurersregularly fight, looking only to sections of their policythat say they don't replace cast iron pipes and ignoringsections that provide coverage for everything else related toit.

"They do seem to take good care of their insured. They do seemto take a good hard look at things and try to take good care oftheir veterans," Weil said. "USI did it right in a number of caseswe had where they said, 'Yeah, we cover this because: See thissection of the policy.'"

There's a common misconception that adjusters aren't assophisticated or experienced as the litigators they'redealing with, according to insurance defenseattorney James Hurley of Fowler White Burnett,who said the majority of claims handlers actually have law degrees,and many have experience in private practice.

"It's not an 'insurance mentality,' as the plaintiffs lawyermight say," Hurley said. "From my point of view, it makes it veryeasy for me to communicate with them on a serious basis."

Heart and Soul

Georgia attorney Alan Hamilton of Shiver Hamilton, whichobtained two of the highest verdicts of 2019, saysinsurance companies usually do get it right, considering they makeevaluations based on very broad data sets, but there are lessons tolearn.

"I think sometimes, not to paint with a broad brush or castaspersions at any insurance company, but sometimes they tend tobelieve their evaluation, sometimes to a fault," Hamilton said. "Ican't speak for all lawyers, but I think these days fewer and fewerlawyers really try cases frequently and are comfortable with that,and I think sometimes insurance companies get away with imposingtheir will on their opponents in terms of what the value of a caseis."

If an insurance company isn't nimble in how it evaluates adeveloping case, "it risks being wrong on occasion," according toHamilton.

Big verdicts don't happen, in Weil's view, unless someone made amistake in judgment.

"Insurance companies maybe wait until too late in the process,where the lawyers and the clients have proven a case that's readyto go to trial and, all of a sudden, the insurance company says,'Well, remember when you offered X dollars at the beginning of thecase to resolve this?' And they want to go back to the beginningwhen it's well beyond timely," he said.

Whatever side you're on, Hurley said, it's hard to convey the"internal grief" that comes from losing unexpectedly, orunexpectedly big.

"You put your heart and soul into a trial," Hurley said. "We'renot a hired person. We are part of the person we're representing,and we know that what we do is going to impact their life, not justthe insurance companies but their insureds as well. So when youlose a case like that, it's devastating."

But after every devastating result comes a usefulexamination period. "They [insurers] want to learn the lessons,"Hurley said. "They are a business, and they want to learn how theyavoid the losses, how they minimize the exposures goingforward."

See also:

• 'Reptile' Co-Author Don Keenan Says Big VerdictsReflect Justice
• These Lawyers Won Some of Biggest Verdictsand Settlements in the Nation. What's the MagicSauce?

From: Law.com