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. Article original published by Restoration & Remediation Magazine
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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 OneThou 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 TwoThou 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 ThreeThou 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 FourThou 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 FiveThou 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 SixThou 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 SevenThou 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 EightThou shalt know thy line items – apply thyself to understand the process of line item approvals. If 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 NineThou 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 TenThou 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 XactimateWhen 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.
Success in property restoration for insurance claims starts with Xactimate estimating mastery.If you work with insurance claims you will want to familiarize yourself with writing and reading Xactimate estimates. This is true whether you are an adjuster or a restoration professional. Xactimate has become the standard for the majority of insurance carriers and third-party administrators (TPAs). If you are new to Xactimate we have three tips that will help you master the best practices for this estimating platform. Xactimate tip number one for beginnersYou must learn from rejection. You are going to get rejected, it’s part of the process. 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. Xactimate tip number two for beginnersYou must learn from repetition. Xactimate is designed for the straight forward losses. While we may disagree on the percentage of claims that are “typical”, there are going to be losses that break with the norm. For the majority of your losses, once you have a loss format that has been accepted you can either create a macro or just cut and paste that format. In my opinion macros can be more work than they are worth but there are plenty of Youtube videos on how to construct these. Memorize the codes and line items that you utilize most frequently and utilize prior approved estimates as standards for future claims. Xactimate tip number three for beginnersYou must learn from relationships. Get to know your local adjusters. For those losses that break from the normal, in and out claim, make contact early and often with your local adjusters. You will learn what they see as simple approvals and what their idiosyncrasies are for the carrier they work for. Once you know the adjuster, make their job easier. Don’t contact them for every little change but rather have your items in order so that you can discuss the claim and make a reasonable request that serves the client as well as meets the guidelines of the carrier. Xactimate best practices for success in claims estimatingIt is helpful to have a consultant or mentor, whether this is an internal resource or someone you pursue from outside your company. There are helpful Youtube videos, independent training programs as well as courses that you can take. (If you are learning to sketch in Xactimate you may find this video helpful) Don’t let fear prevent you from reaching out to someone through email, LinkedIn or for coffee. For most professionals in the industry mastery has come through trial and error. If you want to survive and succeed in the insurance property claims industry, you must learn from rejection, repetition and relationships. Contact us for coaching and consultation with estimating, project management and process improvement.
What does it take to get your web presence generating leads and revenue for your business? We all know that the internet is the information super highway with unlimited potential to unlock opportunities for our businesses. Yet, very few entrepreneurs know the secret codes to unlock the portals that stand between success and obscurity on the world wide web. We can spend endless hours studying the ins and outs of optimizing our content or we can partner with the right professionals. Greg Power of Real SEO Ninja has the unique ability to understand what is needed as well as the skill in helping your organization reap the benefits of a solid web presence. Greg, thank you for taking the time to share a bit of the secret sauce with us. Are you able to explain in less than three sentences what SEO (Search Engine Optimization) is to the layman? Search engine optimization consists of the visible as well as the invisible (back end) actions made within the body of the website to improve the overall search visibility. This is done by constant updates to a website targeting specific keywords that potential clients are regularly searching for that could drive traffic your website. SEO is a full cycle of having a vision for what a business is targeting, developing a strategy for reaching into that client base and structuring the content to connect with those end users. With the right efforts in the set up of a webpage and development of optimization tools, entrepreneurs can expect increased traffic to the site. Traffic raises your webpage rank for specific keywords that in turn brings you into contact with people interested in your products or services. There are plenty of businesses who have website but do not have an optimizatio strategy. What is the consequence of investing in a website but not paying attention to SEO? If you want your website to drive potential clients to your business than you need to play the games by the rules that Google has established. A key component of this is getting your website indexed. If your website is not optimized then your progress could be held up by it taking Google too long to index your website. Without indexing your site basically does not exist to Google as the crawlers get delayed in their process on your web page. Instead of sailing the open seas of the internet you will be anchored in obsolescence, far from the first page of Google. How hard is it to optimize a site after it’s been set up poorly? Like anything else, it's best to do things right the first time. Age of the domain where your website is registered factors into the equations of success for online presence. Looking at the age of domain, you can expect to have lost the equivalence in search rankings which are key to placement. Attempting to go back and fix something that was set up poorly can be costly. The effort to dig back through a site and fix the structure is difficult because it will likely require restructuring all URL tags, meta descriptions, tags, site structure...the list goes on and on. What are some keys that entrepreneurs and business owners an utilize towards getting more out of their websites? The number one technique we use for all of the websites that we construct for our clients is first analyzing relevant trends in searches. Your website strategy needs to be consistent with your goals as a business. Like good business practices, learning what your clients are searching for online and knowing what your top competitors are targeting provides key insights into where you should direct your efforts. There are a number of free tools and resources out there for this level of research or you can partner with professionals who specialize in these areas. Google trends in a common tool that will provide the user with historical data for search terms. Moz is another good free resource as well that offers a wide range of perspectives to maximize your efforts online. What makes Real SEO Ninja different from all the other web marketing and SEO nerd services? At Real SEO Ninja we want to partner with our clients and take great joy in seeing them succeed. We pride ourselves in creating real value by helping businesses get the most out of their internet strategy which includes their website, SEO and social media. Real SEO Ninja attempts to simplify the nerdy aspects of SEO for our clients, showing them that dominating local search isn't as mysterious as so many entrepreneurs make it out to be. Instead of being another bill for your business, we strive to be an invaluable extension of your vision and growth plan. There is money to be made on the internet. Having a website is a key step towards building your empire. The difference between a good website and a mediocre one has a lot to do with quality of the visual, the content as well as the behind the scenes structure. SEO is all of the back end items that can elevate your presence and progress in getting the word out about your business. As with all industries there are professionals and there are pretenders, if you are interested in finding out whether your website and web presence are working for you, contact Real SEO Ninja today. IZ Ventures - more than business coaching and consulting, we help you connect, collaborate and conquer.
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AuthorThoughts on personal and professional development. Jon Isaacson, The Intentional Restorer, is a contractor, author, and host of The DYOJO Podcast. The goal of The DYOJO is to help growth-minded restoration professionals shorten their DANG learning curve for personal and professional development. You can watch The DYOJO Podcast on YouTube on Thursdays or listen on your favorite podcast platform.
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