Why use an expert witness?
It is well known that underwriters, marketers and claim adjusters seldom exchange ideas or discuss risks before new coverage is developed or a policy is written. Some claims are denied because the insurance company did not foresee losses, such as mold, when the coverage was written. The passage of years between the time the accident occurred, its discovery and when the claim is reported increases the risk of coverage and claim disputes.
While the underwriter establishes the underwriting intent, it is the claims department that interprets the coverage and decides whether a specific loss is covered. Not surprisingly, plaintiff attorneys pounce on these grey areas in their efforts to find coverage where none was deemed to be present before.
Unfortunately, the insurance industry itself contributes to these areas of dispute by not having consistent and universal standards regarding policy language, underwriting practices and claims handling procedures. An expert witness can provide the court testimony as to what the proper interpretation is of policy wording – and what constitutes acceptable underwriting and claim handling practices.
Who is a good expert witness?
Attorneys representing clients in insurance and claim disputes generally start by looking for experts who have broad industry experience. If the dispute involves alleged improper claims handling practices, the expert witness should be able to draw upon their overall industry experience -- not just the practices of one insurance company.
The expert witness should be able to interpret coverage and how it applies in the particular case. While work experience, education and industry recognition are important, the ability to think outside the box and to assist in the general direction of the case is a plus. I have been involved in a number of cases in which I was able to make recommendations on other aspects of the case based on my experience.
Additionally, an expert claim witness must understand the various nuances of insurance contracts and third party claim administrative “TPA” agreements. For example, reinsurance treaties often contain a follow the fortunes clause. This restricts the ability of the reinsurer to question claims decisions made by the primary insurer or TPA. In cases involving TPAs, it is beneficial to find an expert with knowledge of TPA performance standards and the nuances of service contracts. Lastly, one should consider the number of times the expert witness has testified. On the one hand, most attorneys do not want the witness to appear to be a professional witness. Additionally, the more times someone has testified, the larger the risk that something in a deposition or trial transcript could find something that could be used against them. On the other hand, prior trial experience is desirable. An experienced testifier should be able to hold up better under intense cross-examination.
