Editor's Note: Christopher Tidball is a claims consultant, speaker and author of this article.

“What do you mean I'm at fault for the accident?” the irate claimant asks.

“I didn't say you were entirely at fault, but you were partially at fault,” the adjuster replies.

“[Expletive], get your supervisor on the phone,” the claimant yells.

Within a matter of minutes, the adjuster's boss instructs him to pay the claimant the entire amount of the damages. “He threatened to get an attorney,” says the exasperated supervisor.

These are often the first few steps taken on the path of least resistance in an industry where comparative negligence remains one of the greatest obstacles to achieving accuracy in outcomes. As an industry, an estimated 3 percent of claims are paid with a comparative negligence assessment. Compare this to juries, where more than half of all claims adjudicated have shared liability.

How is it that untrained jurors excel in an area where trained adjusters flounder? The bigger question is what claims organizations can do to overcome this often ingrained behavior.

The key to success is to first recognize that there is a problem. Perhaps your company excels in comparative negligence assessment with shared liability routinely taken on intersection accidents, slip and falls, and liquor liability claims. Or, if you are like many in the industry, you spend hours pulling your hair out over the ubiquitous assessments of 100-percent liability. As an industry veteran, I was most certainly part of the latter.

The good news is that improvement is not only possible, but it is also highly probable when certain key steps are taken. There are ten steps that can enable organizations to raise the bar and foster better outcomes. Click on “Next“ at the bottom right of this page to view each of them.

Everything starts with management. Organizational leaders must do more than simply say “we need to improve comparative negligence assessments.” That is somewhat akin to the owner of the Jacksonville Jaguars saying we need to win more games. People know what needs to be done, but often lack the leadership, roadmap and tools to succeed.
Don't enable the path of least resistance. If managers routinely allow adjusters to take this path, then it becomes culturally embedded in the organization. In the opening example, the adjuster became flustered and the supervisor took on the role of the appeaser. No harm, no foul—right? Wrong. If a child throws a tantrum every time he/she doesn't get his/her way, do you give in? No; you take the time to explain your position and why he/she was in the wrong. By providing consistent and educational feedback, our children become civil and responsible adults.
Educating our staff and customers is the key to success. By their very nature, people don't like to be at fault. After all, we live in a society where someone else is to blame. Just “Ask Gary,” or the myriad of attorneys flooding the airwaves with commercials telling us we are never at fault, regardless of how guilty or irresponsible we may be. Customers need to be informed, but in order to do so, those informing must be well apprised of the laws and have the ability to explain them in words that the average person will understand. “Sir, the law in California provides that each party is responsible for their percentage of fault. I understand that you had the right of way, but our insured had crossed 80 percent of the intersection when you struck the rear corner of his car. Based upon the points of impact and the insured control of the intersection, we are assessing a percentage of fault against you.”
Don't rationalize overpaying claims out of fear of litigation. When a claimant threatens to obtain legal counsel, he or she will quite possibly retain an attorney whether you appease that person or not. The difference is that paying 100 percent upfront just made the job of getting an accurate bodily injury (BI) settlement much more challenging for the injury adjuster. That said, there are times when candid discussions can take place early on and perhaps achieving a mutually satisfactory settlement includes compensation for inconvenience, such as a BI cashout, in exchange for a full release of all claims.
Improving negotiation skills is the key to effectively resolving claims disputes. It is incumbent upon the adjuster to develop a framework for their negotiation strategy, understanding key arguments while anticipating those of the claimant or attorney. Like many aspects of claims, negotiation is a skill that must be consistently honed in order to be highly effective. As claims leaders, it is incumbent upon is to provide adjusters with the training, knowledge, and tools to become highly effective negotiators.
Improve arbitration skills as a percentage of claims where comparative negligence is assessed will be handled by the claimant carrier, who will in turn assert subrogation rights. In some cases, negotiation simply isn't enough to sway the other party. The key to success when arbitration ensues is to have skilled negotiators who can write compelling contentions and responses that will sway impartial arbiters. Nothing loses arbitration faster than a busy adjuster rushing their response or even worse, simply failing to respond. Recognizing this challenge, some of the most effective organizations have consolidated the subrogation and arbitration response process with staffing neutral, centralized workgroups that excel in what they do, thus freeing up adjusters to be more productive on front-end claims handling.
Calibrating the organization from top to bottom so as to recognize where individuals or groups may be challenged in fundamental liability knowledge. Not every person has the innate ability to recognize and theorize liability. By facilitating sessions to benchmark, organizations can isolate opportunities much faster to most effectively implement process improvement and quality assurance.
Don't reinvent the wheel, as there are others who have overcome very similar obstacles. In my own claims organization, we struggled with inconsistency and some taking the path of least resistance. By leveraging proven solutions, in our case Mitchell International's ClaimIQ, we were able to exponentially improve our comparative negligence assessments with a quantifiable bottom line impact.
Recognize that tools alone won't get the job done. Much like building a house, tools are required but the final product also requires a foundation and framework. Rather it is the combination of the right tools, the right leadership and the right people in the right seats that ultimately get the job done.
Never underestimate the power of measuring success. Simply saying “I want to double comparative negligence results” isn't enough. It requires an action plan with an all of the above approach to gain a competitive advantage. It is important to not only measure improvement, but we wary of potential unintended consequences. Consider one measurement such as increased subrogation referrals, a natural byproduct of increased comparative negligence recognition. What if subrogation referrals closed with no recovery suddenly spike? This may be indicative of bad adjuster behavior. By having both measures and counter measures it becomes possible to focus on both good and bad behaviors, again providing the ability to quickly isolate and remedy problems.

As discussed in Blocking & Tackling: The Playbook for the Winning Claims Organization, the secret to success is often rooted in fundamentals. Consider why the “go to” play in football is running between the tackles. It certainly isn't glamorous and usually doesn't result in a long run for a touchdown, but it works. If a team is able to gain 3.5 yards on a consistent basis, then they will routinely get first downs. This enables them to control the clock, limit the possession of opponents and win more games. Just as championship caliber teams are built upon the execution of fundamentals, so too are world class claims organizations.

Christopher Tidball is a claims consultant, author and speaker. He is a claims veteran specializing in facilitating organizational improvement. To learn more, please visit www.christidball.com.

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10 Steps to Improve Comparative Negligence Results

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