America is the most litigious nation on earth. American jurisprudence is patterned on British "common law" and follows much the same rules as in our colonial days. Concepts such as "innocent until proven guilty," right to a jury trial of one's peers, right of appeal, and the difference between civil and criminal standards ("preponderance of the evidence" versus "beyond the shadow of a reasonable doubt") and all those Latin phrases (res gestae, res ipsa loquitor, stare decisis (reliance on precedent) and habeas corpus (a writ requiring appearance before a court) and rules such as the ability to plead the Fifth Amendment to the Constitution are blessings of our judicial system. Should these rights be suspended, we are in trouble.
The best part of American jurisprudence (stare decisis notwithstanding) is that our courts can change their minds on certain issues. If that were not the case, the infamous Dread Scott pre-Civil War Supreme Court decision would still permit atrocities in the name of the law. Consider that in the 1960s most states had "contributory negligence" laws that would bar a tort claim if the plaintiff was one iota at fault; today only a small handful of states retain that rule, the rest using some form of comparative negligence tort rules. That's why claim investigators' understanding of the law remains so important if the spirit of the law is to be attained.
What many of us fail to understand about American jurisprudence is that our courts do not exist to find "truth;" they exist to give each side of an issue an opportunity to present its position, right or wrong. The courts simply determine which position seems most correct. The results may not always be fair. We may have our day in court and still feel cheated.
The Devil's Advocate
One of the most common sources of confusion revolves around the word "ambiguous." This column has cited that early 16th century London case of Gybbons v. Martin in which the beneficiary of a life insurance policy and the underwriters quibbled over the meaning of the words "one year." The Court ruled for the claimant as it was the underwriters who wrote the policy. Lawyers and politicians can easily argue over the meaning of what "is" is. The most dangerous disease for adjusters is even a mild case of "assumption." We can assume nothing. Every word we say or read must be verified.
No matter how horrendous a situation may seem, every party involved is entitled to counsel, and every position, no matter how bizarre, may be placed before the court. The general rule is that the plaintiff (or in a criminal case, the state) must prove its position with valid evidence that under the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharm. Inc., (509 U.S. 579 [Sup. Ct., 1993]) must be scientifically verifiable. That is the plaintiff's burden. The defendant is entitled to challenge that evidence. The result is supposed to be "truth." But is it truth?
Each party testifying before the court will be sworn to tell the truth, but as any adjuster with any experience at all knows, "truth" is not always clear. Few of us have any real ability to accurately judge factors such as speed and distance. We each see things differently, and that is why our courts require evidence from all possible positions before someone is found guilty or responsible for a loss. But before liability is decided there must be resolution of any coverage issues.
Joseph Pulitzer, the St. Louis newspaper man for whom the annual prizes are named, said that the three most important things in journalism are accuracy, accuracy, and accuracy. The same applies to insurance claims. The adjuster's three most important factors are coverage, coverage and coverage. The insurer's coverage must be applicable before any claim is paid or lawsuit defended. Coverage is the most important factor in any type of claim. If there is no coverage, then liability and damages do not matter.
Next month we will continue our review of litigation and its prevention through the art of adjustment, and gain a better understanding of what litigation is.
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