Whether you are handling a first party claim or a third party claim, managing litigation with a self-represented party (“self-rep”) creates its own set of challenges beyond those expected in the normal course of any claims process. Often, the self-rep is straightforward, easy to work and resolution comes easily, however, these cases are not the ones immediately coming to mind when we think about self-reps; instead, we think of the worst case. The individual who challenges every part of your patience and self-control due to their obstinance, unreasonableness, or unshakeable belief in how they feel things should be done. Unfortunately, these worst cases govern how we tend to perceive and manage actions with self-represented parties. This article takes a look at the self-rep to provide some tips and strategies on how to manage the worst of these cases to get a reasonable and timely result.
One of the difficulties dealing with a self-rep is trying to manage expectations. Whether it is a first party claim or a third party claim, when a self-rep suffers a loss, we often see them citing the same phrases:
- “I have a friend who suffered the exact same injury/loss and my friend got way more money than what you are offering me”; or more often,
- “I have a friend who had an injury/loss not nearly as bad as mine and…”; or
- “I know how this works and you are just trying to screw me over”.
The challenging self-rep is immediately on the offensive in any dealings and typically from the outset. The more you try to put them at ease, the more they believe you are trying to manipulate them. They will be unnecessarily aggressive and demanding because they believe it puts them in a position of power. This is often because they feel powerless against you. It all comes from a place of insecurity and uncertainty. They do not know what to do or what they are supposed to do, so they go on the attack. Instinctively, you may take it slow and walk them the process one step at a time to calm them down and help them out. Typically, this has the opposite effect as they will often see you as being condescending or manipulative which often causes more aggression and distrust, creating an ongoing cycle of conflict. Unfortunately, this is often the result of the negative perception the general public has of insurance companies.
In the absolute worst cases, the self-rep will be not only be aggressive and demanding, but also untruthful. They will take things you say out of context. Often in third party claims, they will exaggerate the nature and extent of their losses and damages, in part to try to emphasize to you what they perceive to be the grievous nature of their loss and in part because they believe it to be true. When you attempt to sort through the confusion or ask questions to get to the heart of the matter, their reactions can be volatile. They will push back harder, will become obstructive, will refuse to provide the necessary information and documentation you need and create an environment of conflict to the point you cannot actually adjust the claim.
Similar things can occur in first party claims which makes it even more challenging to handle because of the cloud of concern over bad faith. In the event a denial is pending or even a partial denial, they will start copying supervisors or claims managers and as things escalate, will often threaten to go to the Superintendent of Insurance or even the media. Even if you have done everything correctly, they push, you get frustrated and the interactions become more strained and less productive. Eventually, litigation is commenced and they restart the whole process in the Courts with initial pleadings and refusals to produce, forcing application after application, unnecessarily prolonging the process.
The Alberta Rules of Court governs all those who come before the Court, whether the person is self-represented or represented by a lawyer. Rule 2.22 states “Individuals may represent themselves in an action unless these rules otherwise provide.” The Law Society in each province and territory will typically govern your lawyer’s interactions with a self-rep. In Alberta, for example, 7.2-12 of the Code of Conduct stipulates:
7.2-12 When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must:
- advise the unrepresented person to obtain independent legal representation;
- take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and
- make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.
While adjusters are not bound by the Codes of Conduct of the various Law Societies across Canada, there is an expectation insurers, through their adjusters, will act in good faith in adjusting all claims whether for their own insureds or for third parties. Taking a cue from the Codes of Conduct, adjusters must also make it clear when dealing with third party claimants they are acting on behalf of their insured and not for the claimant. While there is a preference to resolve claims directly with a claimant, to avoid any potential for allegations of unfairness, adjusters should always encourage the claimant to retain counsel or at minimum, recommend they obtain independent legal advice at the outset and most definitely on any settlement ultimately reached. Discouraging or dissuading claimants from retaining counsel can create more problems than not as it can give rise to a suspicion you are attempting to put one over on them thereby creating conflict where it may not have otherwise existed.
When dealing with a first party claim and your own insured, it is imperative during the initial stages of an investigation the insured is advised you are trying to work with them to resolve the matter as expeditiously as possible and you are handling the matter in good faith. In the initial stages, you need to provide them with a complete copy of the policy wordings to establish the parameters and base on which you will be working. This is even more important when there is a dispute over coverage but should be done in the initial stages regardless. Having the policy wordings in hand will allow them to see what you are referring to at any given point and potentially allays any fear they may have of you trying to hide something or manipulate them. If you get the sense you are running into some issues, encourage them to seek legal advice or retain counsel. It can often calm rising tensions and resolution can be reached without litigation. Additionally, working from a common ground will help establish mutual trust and smooth the way forward.
These initial steps and assurances become even more important when the self-rep is challenging. Because of the vast experience most adjusters have in claims handling, these challenging self-reps are identified fairly early on in the process. They are argumentative, defensive, obstinate and aggressive in response to even the most basic question. As soon as a challenging self-rep is identified, if you have not already encouraged them to retain counsel as you should in the normal course, do so immediately! If you have given the recommendation, reiterate it. Generally, the difficult or challenging self-reps will not take the advice and will continue acting on their own behalf, but continued encouragement to retain counsel is strongly recommended.
It is important to identify early the timelines for commencing litigation, whether in a third party claim or first party claim. You need to reiterate the notice as it becomes evident resolution is not soon to occur. Then, as you near the prescription date, you need to remind them again in writing and very clearly set out the timelines they are looking at. Though not a lawyer (more particularly, not their lawyer) and prohibited from giving legal advice, insurers/adjusters are seen by the Court as being in a position of power because of the knowledge they have of the industry and the process. When considering insurers/adjusters vis-à-vis a self-rep, the Court will hold them to a higher standard.
When dealing with challenging self-reps, it is very unlikely you will be able to resolve the matter directly with them and will need to retain counsel to make use of the system and push the matter to resolution. Having counsel involved is not a magic wand and rarely leads to a swift resolution of the claim, but it does open up options for you. The self-rep, on the other hand, will often become even more obstinate and difficult in the face of counsel and will make it challenging to resolve even the most simple of disputes. Involving counsel allows for involvement of the Court and the Court processes which can include setting Timing or Procedural Orders, Case Management and may provide other options to assist in moving matters forward. Unfortunately, litigation involving self-reps is often protracted and more costly than litigation involving other counsel.
Tips and Strategies for Claims Handling with a Self-Represented Party
One of the more challenging issues when dealing with a difficult self-rep is the underlying suspicion they have of insurers and the process, often coming from a lack of understanding. It is important to remember, merely because they are difficult does not mean they are attempting to make a fraudulent claim, so it is critical you continue to investigate and act in good faith as you would in any other claim. Below is a list of things you can do to help you manage these claims. The practice is best followed with all self-reps, but becomes crucial when working with someone who is difficult and seemingly working against you.
- As best you can, try to keep in the back of your mind the circumstances of the loss to put into perspective maybe why they are acting the way they are. Some people are inherently difficult and will be difficult regardless. Some become difficult due to their reaction to the situation in which they find themselves, particularly if it is not of their own making. Any perceived obstacles being erected by the insurer because of process can amplify their reactions, often negatively.
- Try to put everything in writing in as much detail as possible. Be clear. Ensure you are using common, straightforward language and not speaking over their head.
- Try to limit speaking to them on the phone to prevent miscommunication or misunderstanding, but if you do speak to them either in person or over the phone, then follow up in writing setting out the details of your conversation, to ensure the message is clear.
- From the outset, explain in as much detail as possible the claims process: how it works; how long it takes; what they can expect; and what their options are.
- In a first party claim, be direct, provide the policy wordings, explain exactly how coverage works and the need to investigate what happened. Explain to them the process is the same regardless of the circumstances. Sometimes just the use of the word “investigation” will set the insured off along the path to becoming a difficult self-rep because they believe you are calling them a liar. You need to be clear about the process to avoid that perception. Also remember, merely because they become defensive in the face of an “investigation” does not mean they are being fraudulent. They are just uncertain and sometimes, just scared because they have never had to do this before.
- In a third party claim, explain you will try to work with them to resolve the matter, but you are not their insurer, rather, you are a representative of the insurer for the “bad guy” (at least in their mind) and you are not there to provide them with advice on what they should do.
- Confirm they are at liberty to seek legal assistance at any time if they have any concerns with anything that is happening and encourage them to do so. Do not dissuade them from seeking advice as it raises red flags for them and can create unnecessary issues. If they are being inordinately difficult, urge them to seek counsel as it will likely help you in the long run. Indeed, reiterate the recommendation as often as necessary.
- If it becomes clear you are making no headway with the claimant and the conflict seems to be escalating, see if you can trade the file with another adjuster. Perhaps it is as simple as a personality conflict and they will work just fine with someone else. The point is to resolve the claim and if things are not working for you for whatever reason, a change of face can sometimes calm the tide and prevent escalation to full litigation.
- Absolutely avoid putting in writing, anywhere, your personal feelings about the claimant or any derogatory or negative comments made out of frustration. In first party claims, your entire file, including your notes, are producible and can negatively affect the outcome of a trial in a claim on policy if the Court believes you acted in any manner other than in good faith throughout.
- Finally, if you are just not getting anywhere with the claim and are making no headway toward resolution, your best bet is to send it legal to activate the options only available through the Court processes to move the matter forward.
Handling a challenging or difficult self-represented party can lead to significant stress in what is already a challenging and stressful job. Following these tips and strategies may potentially de-escalate a situation and help you help them deal with their claim. Remember what has led them to initiate a claim in the first place. Sometimes they just need a bit more hand-holding to calm them down and move forward to resolution.