4/2/2019 0 Comments
A recent ruling in Washington State has broadened liability in insurance claims to individual employees.
What is the extent of the reach of the Consumer Protection Act (CPA) and the liability exposure of individual professionals? Historically there has been a separation between agents of an organization and the company which holds the contractual relationship with their customer. In contested insurance claims it is common for companies related to the claim to be brought in as witnesses and/or claimants. Keodalah v. Allstate Insurance Co. is a case from 2018 that broadens the parties that could be called into account, at least in Washington state, to individuals involved with the claim.
What is the legal separation between carrier and vendors?
Working in the property restoration for over a decade, it is difficult to argue that the line(s) between carrier and service providers can often be blurry. When a restoration company is sent to an insured in need as a preferred vendor, in the eyes of most homeowners they are a representative of the carrier. How often have you arrived at a loss to be greeted by the homeowner, “Oh, you are from [insert carrier name]?” How many times have you had to clarify that you work with said carrier but you are an independent contractor? If this relationship is unclear in the mind of the consumer it could be a potential area of exposure.
Do Third Party Administrators (TPA) increase exposure?
With the rapid rise and prevalence of Third Party Administrators (TPAs) enforcing carrier requirements, many restoration providers believe the definition of “independent contractor” is even blurrier. When the carrier sets the guidelines of claims response, standardizes estimating parameters and reserves the right to interpret the nuances of the claim, it is hard to argue that there is much independence for providers that want to continue to work with the volume being funneled through these systems. Furthermore, in cases where the contractor is being called upon to provide information, documentation and opinions related to cause, source, extent and/or duration the contractor may be crossing into the gray areas between duties.
Contractors need to be aware of the liability.
Writing for Restoration & Remediation, former adjuster Peter Crosa comments, “It is within this scenario that the restoration contractor walks the proverbial ‘tight rope’. Performing satisfactory work for a property owner to make sure you get paid while providing a scope deemed fair and acceptable to the adjuster and the insurance company hoping that they’ll call you again on future losses.” As such, if the Keodalah ruling gains prominence within the application of the good faith requirements of the CPA, it may not be so far-fetched to see this extending to restoration companies as well as other professionals involved in the claims process.
What is the Consumer Protection Act (CPA)?
The Consumer Protection Act sounds self-explanatory in its purpose of protecting consumers. In the Keodalah ruling, Washington State has extended the responsible parties in the processing of an insurance claim. With regards to making a case under the CPA the Supreme Court ruled in Hangman Ridge Training Stables, Inc., v. Safeco Title Insurance Co. that, “A plaintiff must show:
What is the Keodalah ruling?
Keodalah v. Allstate Insurance Co. (No. 75731-8-1)
The basics of the case, which should be reviewed with the caveat that we only have those details released by the court. Moun Keodalah was struck by a motorcycle at an intersection which ended in fatality for the motorcyclist. The motorcyclist was uninsured and Keodalah made an Uninsured Motorist (UIM) claim with his carrier Allstate Insurance. “The Seattle Police Department (SPD) investigated the collision. The SPD determined the motorcyclist was traveling between 70 and 74 m.p.h. in a 30 m.p.h. zone. SPD reviewed Keodalah's cell phone records. They showed that Keodalah was not using his cell phone at the time of the collision.”
The available UIM coverage was $25,000 and Allstate responded that Keodalah was 70% responsible so their initial offer was $1,600. (As an aside, quick math brings 70% of $25,000 to $17,500) We don’t know how Allstate came to that initial conclusion but upon rebuff by the insured the amount was raised to $5,000 without any further explanation. One can begin to see how a jury of peers, each with their own perspectives and experiences with insurance, might view this approach as “low-balling”.
Allstate held to their stance that Keodalah was 70% at fault even thought this claims was contradiction to the SPD determination, witness accounts, phone records review and a third party reconstruction investigation (hired by Allstate) from Traffic Collision Analysis, Inc (TCA). Before trial Allstate raised their offering to $15,000 which Keodalah refused and the case continued to jury trial.
Why is the Keodalah ruling unique?
What is unique about the Keodalah ruling is that the Allstate CR 30(b)(6) representative Tracey Smith was named personally in follow up suits. These suits called upon Washington Insurance Fair Conduct Act (IFCA) violations, insurance bad faith and Consumer Protection Act (CPA) violations. From law practitioners that I have spoken to on this case, we have not yet confirmed whether Tracey Smith was the handling adjuster but court documents seem to point to her acting in that capacity. According to lawyer Keith M. Ligouri, “The decision substantially broadens the scope of the threats available to claimants’ counsel when it comes to bad faith. The holding arguably expands exposure beyond the primary adjuster to any employee involved in the adjustment process.”
Keodalah is unique in that Washington State is now the only state which allows individual company representatives to be sued while operating as agents of their company with regards to insurance claims. Responsibility, under the Consumer Protection Action, to the insured does not require a direct contractual relationship. Keodalah potentially opens a “Pandora’s Box” as argued by an Amicus Curiae Brief of Washington Defense Trial Lawyers (No. 95867-0). This brief notes that already two cases have already extended the implications of the Keodalah ruling to lawyers representing insurance carriers.
What is the potential fallout of the Keodalah ruling?
The Consumer Protection Act prohibits, “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” (RCW 19.86.020) With regards to the information available through Keodalah it appears that either the adjuster was responsible for instigating a lie or was an agent of the company supporting a false narrative. Regardless of where the false information and resulting policy dispute originated from, as an agent of the company, the adjuster Tracey Smith was deemed to be culpable.
Insurance adjusters, whether captive or independent, appear to have the most direct exposure in the state of Washington. Review documents note, “The Court of Appeals reversed the superior court and reinstated Plaintiffs’ bad faith and CPA claims against Smith. The court held that RCW 48.01.030 imposes a duty of good faith upon adjusters individually and that the duty is actionable in tort and under the CPA.” As will be discussed below, interpretation of CPA through the Keodalah ruling has already been extended to carrier counsel.
Questions insurance vendors should be asking:
What is the future of the Keodalah ruling?
While insurance fraud is real and has consequences that ripple through organizations as well as to end line users in the form of policy rate implications, good faith is also a key ingredient in the claims process. Consumers are expected to act with integrity as are carriers, their agents and those associated with the claim. The 2018 ruling by the Supreme Court of Washington State in Keodalah v. Allstate, which is currently under review, should be something all individuals operating within the umbrella of insurance claims are paying attention to. It’s no surprise that an consumer would take legal action against a company in the event of a dispute, but it is historic that the individual agent was named. Keep an eye on this case.
Learn the secrets to success writing insurance claims with the Xactimate estimating platform.
The insurance claims estimating world can feel like a wandering in the dessert for restoration professionals. The frustration with the guidelines of program work and having to be reviewed by third party administrators (TPAs) can bring mitigation and construction estimators to a point where they feel lost and leaderless. Anyone who manages projects within the insurance claims industry must familiarize themselves with reading and writing Xactimate estimates. For those just beginning their journey in estimating insurance claims, you will find our Three R’s of Mastering Xactimate for Beginners to be a helpful baseline for success. The cloud of mystery that surrounds the stone tablets of this industry standard may scare and confuse many, but with the help of these ten commandments for Xactimate mastery you may find that you can achieve success.
Estimating with Xactimate Commandment One
Thou shalt sketch accurately. Regardless of the tools that you use, make sure that you get your sketch right. An accurate sketch is the key to creating a solid Xactimate estimate. Sketching from the site is one of the best ways to ensure you get odd corners and turns in a unique layout accurate as well as capture all of your line items. Second best is utilizing sketching programs or a good graph notebook. If you are new to sketching for construction estimates, property restoration or Xactimate, check out this video on the foundations of a good diagram.
Estimating with Xactimate Commandment Two
Thou cannot take too many photos. For those who started in the industry when we had to print photos or save them on 3.5 in floppy disks, there may be some hesitation to take too many photos. With modern digital technology this is no longer true. The more photos that you take the better. Always take photos of the front of loss, source, shots from all corners of affected rooms, affected materials, equipment and any unique components of the claim. Learn what carriers and adjusters are looking for as it is a terrible waste of time to have to run back out to a project just for one shot to justify a key line item.
Estimating with Xactimate Commandment Three
Thou shalt label they photos descriptively. Common descriptions should include the room name and what is being represented with the photograph such as “Kitchen floor damage” or “Living room ceiling affected”. Carriers are often requesting that photos be uploaded in relationship to the sequence of rooms in the sketch, this can be easily done by dragging photos into the rooms when uploading into Xactimate.
Estimating with Xactimate Commandment Four
Thou shalt utilize thy F9 notes. F9 notes can be used for formatting but breaking up large sections of line items into categories that make the estimate easier to read for reviewers, adjusters and your production teams. F9 notes can be used to describe how a line item is being utilized, for example DRY LF may have an F9 note of “Repair flood cuts for common wall to bathroom” especially if there is another drywall line item in the room that may be for the ceiling or separate section of wall. If you ever utilized a labor (LAB) line item you must understand that it is going to be questioned and should have an ample F9 note, photographic support for the scope being requested and best to have the designation as “approved by adjuster,” assuming that you have already discussed it with them. Communication is key, utilize this simple function.
Estimating with Xactimate Commandment Five
Thou shalt document your initial findings. Whether it’s a 12 hour update for a mitigation claim or a loss narrative for a repairs claim, you need to communicate the conditions you have found once you have completed your inspection. For mitigation projects you are communicating the site conditions, source and drying plan. For repairs projects you are confirming the site conditions and outlining the scope of work that you are estimating for. Samples of what should be covered in the twelve hour update as well as the loss narrative for Xactanalysis include:
Sample 12 hour update for mitigation projects in Xactimate:
Sample loss narrative for repairs projects in Xactimate
Estimating with Xactimate Commandment Six
Thou shalt update thy adjuster in real time and document consistently. One of the keys to success for any organization or project management system is communication. A key principle for communication in the insurance claim industry is no surprises. Utilize email, text, phone calls and third-party programs such as Xactanalysis to communicate consistently and clearly with all parties. While some adjusters may have you wait until the end of a claim to compose all of your supplements and changes, you want to make sure that you aren’t waiting until then to communicate and acquire some form of written approval. You want to build relationships with adjusters and claims administrators and communication is a means to making their job easier by not surprising them with alterations to the plans previously agreed to.
Estimating with Xactimate Commandment Seven
Thou shalt learn thy carriers guidelines. While it is impossible to remember all of them unless you are able to specialize with specific carriers, it is important to know the key rejection line items. Pay attention to what you are getting rejected for. Try to not repeat the same mistakes with the same carriers. Every carrier has their general rules as well as their idiosyncrasies. For example one carrier will want contents as CON LAB and another will want to see it as CON ROOM. It should only take one rejection for you to understand and remember which carrier prefers the line item one way or the other.
Estimating with Xactimate Commandment Eight
you do not want to be constantly frustrated by rejections you must quickly learn which line items will get rejected by reviewers or will require adjuster approval. When working with third party administrators (TPAs) you will have to work through layers of review and approvals based upon insurance carrier guidelines. If you have a scope of work that falls outside of the norm you will need to get in communication with the adjuster to discuss how they would like that scope of work broken down. A scope and line items that may not pass through the normal review process can be overridden if there is ample explanation through F9 notes, photos and the designation that this has been “approved by adjuster”.
Memorization of line items can help boost Xactimate estimating success and expedience
Estimating with Xactimate Commandment Nine
Thou shalt know thy line items – thou shalt understand thy line item descriptions. When you start writing estimates in Xactimate you need to take some time to familiarize yourself with what is and isn’t in a line item. As a general rule, most carriers do not want you to utilize labor (LAB) line items as in theory everything that needs to be done should be covered in a line item scope of work. For those items that are out of the ordinary you need to ensure that there isn’t an Xactimate line item that covers the work you are requesting labor for. Also, ensure that you aren’t duplicating a scope of work that is already covered in the line item while also ensuring that you aren’t cutting yourself short by missing items that are omitted from the line item description.
Estimating with Xactimate Commandment Ten
Thou shalt learn to master the tri-fecta of service, expedience and accuracy. Restoration creates the challenge of getting in and getting out expediently while providing a quality service and communicating with multiple parties. When the scope of work falls outside of the timeline requirements be sure to communicate and update frequently. Restoration professionals have to be skilled in the construction and mitigation trades, must be able to provide a high level of customer service which is grounded in communication and are required to be technologically proficient to utilize the industry tools.
Insurance claims estimating mastery starts with knowing the guidelines of Xactimate
When Moses came down from Mount Sinai with the two stone tablets, there were questions and fear, but there were also some clear directives. Xactimate and program guidelines generate similar emotions but one cannot argue that there are keys to success when working with the estimating software. You can argue all you want about who gave the directives, who is interpreting the guidelines and whether the system is fair, but you also had better apply your energy to learning Xatimate’s keys to success. If you are just starting out in your estimating journey, you may find our Three R’s of Mastering Xactimate for Beginners to be helpful. Insurance claims are subject to some level of interpretation so mastering the tools of the trade is essential to achieving success with the process.
Contact us for coaching and consultation with estimating, project management and process improvement.
When it comes to tools of the trade for water damage mitigation and restoration, is preference for standard equipment such as moisture meters anything more than opinion? We stumbled across this video which ranks the ten best moisture meters of 2016. Take a peek and tell us what you think.
Moisture Meters Reviewed In This Wiki:
General Tools & Instruments MMD7NP
General Tools & Instruments MMD4E
To the credit of the creators of this video, they go back to some of the classics such as Sonin & Wagner as well as the more cost friendly options such as the General Tools & Instruments that are available at major retailers like Lowes. The only meter on this list that I have seen frequently in the field for water damage mitigation and property restoration contractors would be the Protimeter, even those the creators of this video opted for the non-penetrating version.
I can remember my first moisture meter, it was the Protimeter Surveymaster and I was so proud to have the option of both penetrating or non-penetrating moisture detection through this compact yellow tool. This tool in the early 2000's brought those two modes of structural moisture reading into one tool, no longer was there a need for two separate instruments. Compact moisture meters with modern technology provide the property restoration professional with multi-purpose emergency response tools.
Years later I went to work for another national company that had an exclusive with a model of meter designed by Delmhorst that they were rather fond of. We had the more modern handheld devices from this vendor, but I have seen so many more of the older models used and sworn by industry professionals including industrial hygienists and wood floor specialists. The Delmhorst that we used had a non-penetrating sensor, penetrating probes at the top of the instrument and had a hygrometer stick attachment that enabled readings for relative humidity as well as ambient temperature, an all-in-one tool for the water damage mitigation professional.
In the good old days, there was a separate moisture meter for everything. In these golden years where technology has combined resources and the market has brought pricing into more reasonable values. One of the funnest tools available is the Flir MR176 Imaging Moisture Meter which literally provides the Swiss Army Knife of water damage mitigation response tools. These instruments provide non-penetrating readings through a sensor on the rear of the unit, penetrating moisture readings through a pin attachment, ambient readings through an attached hygrometer sensor and a thermal imaging camera all in the same tool.
Originally published as Shared Spaces: Shaking Up The Restoration In-Office Experience
February 24, 2016 by Restoration & Remediation Magazine (R&R)
By Jon Isaacson
Could restoration companies benefit from a non-traditional work space?
I started my career in property restoration in a shared office with myself, my manager and space designated for our crew to meet and interact. At most places I have worked since, the more normative office is laid out in designated segments of isolation. While I don't dismiss the value of personal space and enjoy my privacy as much as anyone, I have found the value of shared spaced and have worked to create open work space in every team that I have supervised.
Shared Space Equals Shared Experiences
When you share an office, you can feel the pulse of the team. You hear your team, even when you are not conversing with them directly, you are hearing their interactions. While there are times when the noise level has to be managed, when you hire people who are respectful they will likely already understand the dynamics of time and place in an open space.
For our teams the benefits of a communal office within our department has far outweighed the perceived negatives. Imposing an open office on people who are not ready for it is a recipe for disaster. Transitioning to a shared space is made much more seamless when you have people who enjoy working together and/or you hire people who understand the culture. Implementing an open office is not of any benefit if it does not reflect your culture or add value to your team.
Open Space Equals Open Communication
Creating a shared space has allowed us to more readily share information at all levels of our department. Having our crew come into our office in the morning creates a natural opportunity to discuss the day's assignments. When the crew returns in the evening, we can debrief and discuss needs for the following day.
These organic connection points throughout the day have increased our interactions at professional and personal levels. Combining our open space with making our workloads visible has helped us to elevate our clarity across our team interactions.
Your office is your second home. Arguably, you spend more time in your work space with your work peeps than with your actual family, so making it an enjoyable and functional environment should be a priority.
When drafting the plan for your work space - whether open, traditional or some other system with a fancy name - think about the following:
For our department, we have hired people who bring value to the team, we have been protective of the culture that we have developed and we have enjoyed the benefits of a shared work space.
Jon Isaacson / IZ Ventures - More than coaching and consulting, we help you Connect, Collaborate & Conquer. #MTWSL
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