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

Q: What are some current trends in litigationtoday?

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

Arizona, for example, in the last six months came down with adecision that said a one-to-one ratio is presumed to be what'sreasonable, unless there is some egregious circumstance at whichmaybe two-to-one or three-to-one would be appropriate. This haskind of taken some of the guess work out of litigating those casesthat you're always threatened as an insurance carrier with: badfaith and punitive damage claims. It stopped driving so much of itand 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 serviceswhere I can find out everything about jurors. Social media reallyopened up so much for litigation purposes. It's created liabilitybecause you can find anonymous complaints against an individual ora business that result in basically libel and/or slander under thecircumstances.

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

We had a very significant claim in Philadelphia where awoman was claiming that due to this accident she was involved in—inwhich was very debatable as to the seriousness of her injuries—shecould no longer really do much of anything. In her deposition, shewas specifically asked what she did this past New Year's Eve andshe said she had to stay home because she felt so bad, she couldn'tget out and party and dance and do all the things that she wouldhave enjoyed doing.

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

Obviously, you can't use it on a lot of cases, but if you getthe opportunity, sometimes it can be a heck of a defensive tool toemploy.

The old days of trying to follow a claimant who you suspect is amalingerer or faking are over. When I first got into the businessthere were all sorts of tricks that private investigators woulduse, 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 shehad a back injury came out with her bathrobe on and suddenly ranaround gathering the money on her lawn.

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

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

Don: There's been a big change in the use oftechnology during trial. Most court houses now have all of themedia: screens for each individual juror, screens for the judge,the audience. So you really have to be technology savvy and put ona presentation, particularly for the younger generations. Theyexpect 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 howyou're going to show your themes visually because we're dealingwith a whole different generation that expects to see thevisuals.

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

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

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