With spoliation of evidence claims on the rise, insurers need to be increasingly aware of steps that must be taken to preserve damaged property. To better understand this, it is important to first recognize and understand chain of custody.
The inception of chain of custody is the point in time at which evidence is collected, and the chain must be maintained until the evidence is disposed. Evidence comes in all shapes and sizes, and depending upon the nature of your claim, must be cared for in a variety of different ways. This chain ensures continuity in accountability and is essential, as any break in the chain may invalidate admissibility in court.
The chain of custody is a chronological written record of those individuals who have had custody of the evidence from its initial acquisition until its final disposition. These persons in the chain of custody must be identified, and any person coming in contact with the evidence must be documented.
Ideally, there will be an evidence custodian. It is incumbent upon the custodian to be a steward of the evidence while documenting everything that happens through the lifecycle of the evidence process. Even more critical is an understanding of the various state laws pertaining to evidence and spoliation thereof, which can leave the custodian liable for damages.
It is often advisable to utilize an independent evidence custodian, as this will minimize charges of tampering with evidence. By securing evidence in an independent location, all parties associated with the claim will have access to the evidence.
Another key part of the process involves the utilization of evidence receipts. Evidence receipts are provided to those who deposit evidence. The evidence custodian will always retain the original; a second goes to the person depositing the evidence and a third goes to a case file. Having the ability to electronically retain this documentation and back up in an off-site, secured location is ideal.
The original chain of custody form becomes a voucher and is given a voucher number when it is presented to the evidence custodian. Evidence vouchers should be numbered consecutively from inception to the current date. This original voucher should not leave the custodian, with the exception being submission to a court of law as evidence.
An evidence sub-voucher should be utilized to document any changes in the chain of custody that occur when the evidence leaves the evidence room. Consider a situation in which a mold sample leaves the evidence room with the plaintiff attorney and is turned over to a toxicology expert for analysis. In this case, a sub-voucher would be utilized. The number of the sub-voucher should reflect the number of the original.
Disposition of evidence occurs when the materials in custody are no longer needed, at which time the property should be turned over to the proper owner or, if unknown, to an applicable insurer, state, or federal agency.
The file owner should be tasked with notifying the appropriate storage venue that the evidence should not be sold until they have received written authorization permitting the sale to commence. The following steps should then be taken to preserve the evidence.
- There should be diary files for 48 hours to confirm that the salvage vendor has placed a hold on the property denoting it as evidence.
- The claim file notes should clearly denote that the property is being held as evidence.
- If permitted in a claim system, the feature attached to the property being held should be flagged with some type of system-generated safeguard that will require a manager's approval for future release.
- Set a diary for 30 days to confirm that a vehicle is still under evidence hold and follow up every 30 days thereafter.
- Once the evidence is approved for release by senior management, it should be released back into the salvage flow.
In any situation involving a total-loss vehicle, the claim representative must take care in complying with any statutory requirements, in addition to the steps listed above.
By executing basic blocking and tackling, you can ensure that your organization will steer clear of costly spoliation litigation.
© Arc, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to TMSalesOperations@arc-network.com. For more information visit Asset & Logo Licensing.