Ah, July—the month of cold lemonade under a shady tree,baseball, fireflies and grilling hot dogs. And, of course, Fourthof July fireworks!

While for kids the Fourth may mean sparklers, picnics and agrand display of colors bursting in air, the elder among us (or atleast those who have completed at least a modicum of Americanhistory classes) know the real celebration is of a few dedicatedsouls who risked everything for a grand experiment in freedom thatthe rest of the world was fairly unanimous in believing destined tofail. After all, no matter how intelligent or influential some ofthose original patriots may have been, who seriously believed thosefew solid souls could stand up against the greatest national poweron earth for a mere fortnight, much less the years of strugglenecessary to birth freedom for a new nation? Their unexpectedtriumph cries out for celebration!

Often such successes are referred to as David versus Goliathstories. I'd like to suggest a better analogy for our purposes: thelittle kid who drives you crazy asking “why, why, why?” Althoughthe final result rested on a triumph of arms, it began with asimple question: “Why do you think you have the right to do thesethings to us?” And when the answers basically came back as “Becausewe said so,” what began as mere puzzlement turned into somethingfar more.

Related: Read the article “Real Or Personal Property?” by David D.Thamann.

As soon as the questioning began, the avalanche of “Give it up,you can't do anything about it” ensued. From a military standpoint,England had the greatest army and navy in the world, and hadtriumphed over large and powerful nations in several previous wars.As for resources, its trade routes and merchant marine were theenvy of all and its wealth immense. The system was clearly firingon all cylinders, so either you are simply wrong to question or tooweak to object to the imposition of the greater will.

That sounds very similar to how an insured or individual agentmight feel when confronting an insurance carrier over a claimsdisagreement. Oh, I hear some of you already suggesting thatcompany folks are hardly tyrants to be overthrown. But if you goback and read your history, you'll find the vast majority of thecitizens of both England and the colonies felt the same about themother country. Judging by the recent media frenzy over the royalwedding, some things haven't changed.

And while carriers, like England in those days, may get the vastmajority of their decisions right, that doesn't change the factthat when something is wrong, someone needs to stand up and makethe challenge, knowing the avalanche of “Let it go, you can't doanything about it” is sure to come.

While I certainly am not suggesting a war with the carriers,neither were the original patriots. They were British citizens, andmost assumed those in power were simply unaware of the affect oftheir dictates. Once apprised of reality, our forefathers werecertain, the proper officials would withdraw the obviouslyerroneous decisions and life would go on as before. We knowsomewhere along the line, that assumption became victim to hubrisand arrogance on the English side, and the rest, as they say, ishistory.

Believing the vast majority of carrier folks are in reality ashonest and true as the colonists believed those British officials,I suggest the original approach was the right choice: When indoubt, ask the question and trust the responders to see the errorof their ways. Only when all reasonable approaches fail should theoptions turn to open war.

For example, take this actual claim that camemy way via a student in one of my classes. Here are the basicfacts, edited for brevity and to preserve the privacy of theparties involved:

The strip mall in which the insured was a tenant had a fire,with no implication the insured was involved. Due to the fire,containers of chemical the insured had in his business leaked,mixing with the fire fighting water. His insurance company hadissued a BOP, using the standard CG0001 12/04 Commercial General Liability CoverageForm.

Roughly a month after the fire, the agent received a copy of adeclination letter from the carrier, stating they had received arequest for pollutant cleanup by the landlord. The letter statedthree reasons for denial:

1. The claim brought is for costs to respond to cleanup of a“pollutant” and such costs are not covered under the policy
2. If there were an “occurrence,” there are no damages that meetthe definition of bodily injury or property damage
3. The pollution exclusion applies in this matter.

I always suggest when facing multiple reasons for a claimsdenial, the best approach is to treat it as a game of Battleship:Consider each shot one at a time, and see if it is a hit or miss.Under no circumstance allow the other party to bury you under anavalanche of reasoning, when the intent is clearly to let the mereweight of the argument crush your feeble attempts. Sounds like thatEnglish army/navy/economy bit, right?

Related:Read the Amrhein's previouscolumn “Keep It Simple”.

So let's take the above three reasons one at a time, not arguingdetail but simply asking the simple question that will put theburden back on the carrier to offer those good and decent folks theopportunity to either defend their decision or realize the error oftheir ways.

1. Yes, the expenses were for cleanup of a pollutant, but only fordamages arising from a hostile fire. Where is that excluded, asopposed to the clearly excluded simple cleanup due to spillage orcontainer leaks?
2. What do you mean “if there were an occurrence”? The firedefinitely happened, and isn't the landlord's demand for cleanup anallegation that property damage as defined took place as aresult?
3. Why does the pollution exclusion apply when the form clearlystates as an exception to the exclusion (f.(1)(a)(iii)): “However,this subparagraph does not apply to: “Bodily injury” or “propertydamage” arising out of heat, smoke or fumes from a “hostilefire”?

Note two key points.

First, as readers of my previous columns know,read the forms. You can't just argue right and wrong and fair whendealing with specific contract language.

Second, it isn't your job to be a skilled formsinterpreter/expert/attorney, so don't let anyone tell youotherwise. Just like those folks who insisted a bunch of amateurhunters were no match for trained British soldiers, people oftenassume only “experts” are qualified to question another “expert.”And for those who are considered “experts” either by themselves orothers, it's a great way to attempt to intimidate the opposition.But you aren't trying to win, just get to the right answer. Andanyone is entitled to ask a reasonable question. I like reading theforms first partly to give myself some confidence that my questionis reasonable.

So in the above claim, our agent friend did not spend weeksdoing legal research or wait until he finished adjuster or lawschool. He simply sent an email to the adjuster who wrote thedenial letter asking, in his own words, the three questions above.Now he waited. Would his query find a reasonable, honest and truepractitioner of the arts or was he about to start a war?

Perhaps the best answer is simply to quote the response from theadjuster which, by the way, came back the very same day as theagent's questioning message (again, edited for privacy):

Related the article “And Another Agent Is Cringing” by DianaReitz.

Thank you for your oversight and feedback on this matter. Iapologize for any confusion or concern that I may have brought inthis matter.

Upon review, I agree with your position. I will be in contactwith your insured to discuss this matter further, as well asadvising him in letter form that we will rescind the prior denialand adjust this matter for him under the terms and conditions ofthe policy issued.

Again, I apologize for any inconvenience.

Don't you just love a happy ending?

But let us be clear: This is exactly the sort of response I seetime and again from reasonable, astute folks in our industry.Mistakes and misunderstanding may occur, particularly in anindustry often buried amidst the detail of thousands of claimsdaily. Yet when reasonable folks defer argument and open warfarefor simple questions, providing good folks on the other side roomto thoughtfully review instead of backing them into a corner wheretheir only real option is to crumble or fight back, wonderfulthings happen.

So along with our other celebrations this month, let us add thequiet satisfaction and joys found in working with folks who aremore interested in partnering to get it right for our insureds thanproving who is the biggest, baddest dude on the playground.

Cue the fireworks!