This article is arguably the most popular article on the First Party Property Insurance Blog.
When a homeowner sues his homeowners insurer, his attorney often requests the insurer to have someone speak for the insurer on the record. This is called the corporate representation deposition, and it could be the turning point in the case. Read this article to learn the details.
If you read to the end, I will tell you about how to solve this issue.
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I found a very interesting article today, and it gives me the opportunity to share my insight on the issues associated with corporate representative depositions of insurance companies. I also want you to read all the way through the end of this article for my proposed solution to this issue.
For anyone who is involved in property insurance litigation, corporate representative depositions in breach of contract cases are a big hassle. Whether a sinkhole claim, long term water claim, or late notice claim, insured’s attorneys will eventually ask for this deposition. For the insured’s attorneys, they are a hassle because they want the deposition to happen as soon as they request it and on their terms; however, the insurer’s attorney will not allow it without limiting the deposition.The insured’s attorney wants someone to speak for the insurer so the attorney can ask why the insurer reached the conclusion it did.This sounds fair, right?
For the insurer’s attorney, however, the deposition is a burden because it requires the attorney to confer in good faith with the insured’s attorney to try to limit the scope of the deposition to what he or she believes is proper.What is proper is discussed in more detail below.In addition, the insurer’s attorney must file an objection and/or motion with the Court and argue it to have the Court understand that the deposition might cause irreparable harm by invading privileges.Further, the insurer’s attorney must go to great lengths to prepare the corporate representative for the hours of questioning that may ensue (see Testifying to the Facts of Someone Else’s Investigation).The insurer’s arguments: (a) the insured’s attorney already knows the answers to the questions asked and (b) if the insured’s attorney was so interested in discovering facts, then why didn’t he or she first ask for the depositions of those with personal knowledge, including the adjusters and experts?
The “Bill of Rights” article by Carlton Fields is great because it helps let us remember how burdensome the deposition is for the insurer.First, the insurer has to appoint an eloquent supervisor who has the general knowledge and experience to bind the corporation with his or her testimony.The representative must learn the entire claim file from its inception until the date of the deposition.This can involve review of hundreds to thousands of pages of EUO and deposition testimony, reports, photographs, estimates, and journal notes.In addition, the representative might be required to testify to facts as if the representative was the field adjuster, claim examiner, engineer, and contractor!There are at least two limits worth discussing at this point.Although the insured’s attorney might try to ask the corporate representative to “be a lawyer” and interpret policy provisions, the representative does not have to answer these types of questions. Corporate representatives also are not required to testify about coverage in general.
This article contains what the author dubs “the Corporate Representative’s Deposition Bill of Rights (and Wrongs).”As discussed by the author, this is not a very helpful set of rights for the insurer.Instead, it is more like a “Bill of Obligations.”The article is fantastic, however, because it cogently describes all of the effort that must go into the deposition.The “rights” are as follows:
1. You do not have the right to remain silent, meaning that you must know:
a. more than just the representative’s personal knowledge;
b. more than just one of the insurer’s department’s knowledge;
c. more than just the knowledge that the insurer has;
d. the knowledge of former employees;
e. information that arises from evidence in the case; and
f. information that takes an inordinate amount of time and effort to obtain information the insurer learned through its lawyers.
2. Anything you say can be held against you (or the corporation).
3. You have the right to an attorney.
4. You have the right to not be the person with the most knowledge of the claim.
5. You have the right to know the general scope of what will be asked at the deposition.
Wow!This does not sound like a “Bill of Rights” to me; however, it is a “Bill of Truth.”Regardless of how ominous this sounds, there are few limits on what an insured’s attorney can ask at a corporate representative’s deposition.
An insurer’s corporate representative’s deposition in a breach of contract case, however, is different from any other corporate representative’s deposition for a variety of reasons.With the proper preparation and, frankly, hard work, an insurer’s attorney can ensure that the corporate representative does not testify to what it should not testify to.In short, these limits are:
1. privileged information regarding claims handling;
2. privileged information regarding company-wide policies and procedures;
3. privileged communication between the insurer and its attorneys; and
4. legal interpretation of the insurance policy.
As much hard work is required to limit the deposition, the insurer’s attorney has to expend equally enough effort to prepare the corporate representative by promptly and thoroughly educating the representative about information known to the field adjuster, claim examiner, any engineers, any contractors, and, believe it or not, the lawyer.This sounds like a lot of effort, and it is.Nevertheless, if the insurer can conquer the corporate representative deposition, then the insurer will have shown the insured and, potentially, the jury, why the insurer reached the conclusion it did. As the voice of the insurer, the corporate representative has the opportunity to solidify the insurer’s defenses.
Corporate representative depositions should not be handled by emails and Word documents. Stop it now.
Corporate representative depositions need to trigger a system of events to ensure homeowners insurers are protected. The system should include “check the box” and “fill in the blank” tasks that homeowners and their attorneys determine to be necessary. This shouldn’t be up for discussion, as all time should be focused on preparation, not evaluating what to do for the 1,000th time.
Corporate representative depositions should also trigger a set of automated legal documents to save clients thousands of dollars in legal fees. This is a simple system.
If you are interested in learning more about our checklists and guides for handling corporate representative depositions, please message me.
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