Bad faith claims and technology are among the hottest trends in insurance litigation today. PC360 spoke with two professionals in the field—Robert Miller, senior vice president and director of liability and property claims at Mitsui Sumitomo Insurance Group, and Donald Myles, a partner with the Phoenix, Arizona-based firm Jones, Skelton & Hochuli—about changes in punitive damages, the use of social media in injury claims and the need to get young partners involved early on in defense trials.

Q: What are some current trends in litigation today?

Don: Punitive damages used to really drive a lot of litigation, particularly against insurance carriers. Over the last 10 or 15 years, the Supreme Court has arraigned that, and now we're starting to see various state courts come up with decisions supporting the limitation of punitive damages with a ratio.

Arizona, for example, in the last six months came down with a decision that said a one-to-one ratio is presumed to be what's reasonable, unless there is some egregious circumstance at which maybe two-to-one or three-to-one would be appropriate. This has kind of taken some of the guess work out of litigating those cases that you're always threatened as an insurance carrier with: bad faith and punitive damage claims. It stopped driving so much of it and now there's some reliance that you're going to get relief, regardless of what a jury might do.

The other interesting change is social media. There are services where I can find out everything about jurors. Social media really opened up so much for litigation purposes. It's created liability because you can find anonymous complaints against an individual or a business that result in basically libel and/or slander under the circumstances.

Bob: We have had instances where from a defense standpoint, we are able to get into someone's Facebook account. Believe it or not, sometimes an attorney representing the plaintiff doesn't understand—or care—and will give you permission to go into a person's Facebook.

We had a very significant claim in Philadelphia where a woman was claiming that due to this accident she was involved in—in which was very debatable as to the seriousness of her injuries—she could no longer really do much of anything. In her deposition, she was specifically asked what she did this past New Year's Eve and she said she had to stay home because she felt so bad, she couldn't get out and party and dance and do all the things that she would have enjoyed doing.

Sure enough, we found her Facebook and she had 30 or 40 pictures of herself on New Year's Eve, at a party, doing all sorts of dancing.

Obviously, you can't use it on a lot of cases, but if you get the opportunity, sometimes it can be a heck of a defensive tool to employ.

The old days of trying to follow a claimant who you suspect is a malingerer or faking are over. When I first got into the business there were all sorts of tricks that private investigators would use, like scattering money over someone's front steps and yard, knocking on the door, and hiding.

I can remember vividly on this one claim, a woman alleging she had a back injury came out with her bathrobe on and suddenly ran around gathering the money on her lawn.

I think that kind of stuff has long been ruled out as being dirty tricks, so we've had to find other ways if you suspect somebody is a malingerer, and technology has done that.

Q: What are some other technology-related tools that have changed insurance litigation?

Don: There's been a big change in the use of technology during trial. Most court houses now have all of the media: screens for each individual juror, screens for the judge, the audience. So you really have to be technology savvy and put on a presentation, particularly for the younger generations. They expect to be entertained and the old “Hey, pass this letter around” doesn't cut it anymore. You need to put some real thought as to how you're going to show your themes visually because we're dealing with a whole different generation that expects to see the visuals.

Q: What are some changes that need to take place to improve insurance litigation?

Bob: Defense-type firms need to take advantage of getting more involved from the beginning in potentially serious claims. When I was a young guy companies had excellent training programs and continuing education to try to teach claim handling skills. A lot of that's gone for different reasons. That lack, plus the complexity of some claims we're seeing today, is why you need to get the defense council involved in some of these claims early on—I'm talking even pre-suit—to help develop factual investigation skills and develop information you may need down the road.

Don: As time has gone on, I think areas of litigation have become more specialized. Less and less lawyers have trial experience, and we have trouble getting our young partners that trial experience. It's difficult—very competitive.

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