The Art of Adjusting® Podcast

Episode #86: Anatomy of a Slip and Fall Claim

• William Auten & Chantal Roberts • Season 3 • Episode 86

Share episode

Send us a text

A slick floor, a hard fall, and suddenly everyone asks the same question: who pays? We open the claims toolbox and walk through slip and fall cases step by step, showing how quick evidence work, clear liability analysis, and smart communication shape the outcome. From icy sidewalks to grocery spills, we explain the differences that matter and the proof that sticks.

First, we dig into scene preservation and notice. You’ll hear why photos and security video are gold, how floor-walk logs can narrow exposure, and when a “storm in progress” protects property owners. We put the ABCD test—duty, breach, causation, damages—at the center, then layer in comparative fault, footwear choices, and the reality that invitees share responsibility to keep a lookout. A buffet ice cream case illustrates how seconds of video can flip a claim from alleged negligence to med-pay only.

Next, we map contribution and contracts. Snow removal agreements decide who shares blame, so we break down “we handle everything” promises versus narrow scopes, and why early outreach to other carriers saves everyone time. We also show how to keep your insured looped in with offers, demands, and potential excess exposure to guard against bad faith narratives.

Finally, we tackle the part that derails many settlements: Medicare, Medicaid, and ERISA. Learn why CMS reporting is mandatory, what conditional payments mean, and how to explain tentative versus final amounts without losing trust. We close with valuation strategy, practical negotiation moves, and the litigation arc—from summons to discovery, mediation, and full and final releases, including consortium and minor approvals.

If you want clearer claims, faster resolutions, and fewer surprises, this deep dive will sharpen your process and your judgment. Subscribe, share with a colleague, and leave a review to help others find the show. What’s your toughest slip and fall challenge right now?

For more insights, you might consider a career in liability adjusting or if you're searching for reliable adjusting services, visit Auten Claims Management.

To explore more about Chantal Roberts and her contributions to the industry, visit CMR Consulting.

Promotions:

  • Once Upon a Claim: Explore the magical world of claims adjusting through fairy tales. Get your copy now.
  • The Art of Adjusting®: Master the art of claims adjusting with practical insights and expert advice. Purchase here.




William Auten:

Hello, I'm Bill Auten of Auten Claims Management.

Chantal Roberts:

I'm Chantal Roberts of CMR Consulting, and welcome to the Art of Adjusting Podcast.

William Auten:

Today we're going to talk about life as an insurance adjuster from the perspective of property, auto, liability, or workers' compensation adjusters. Our goal is to bring interesting topics in the world of claims adjusting to people who are working as an adjuster now and to people who are considering a career as a claims adjuster.

Chantal Roberts:

Good morning, Bill.

William Auten:

Good morning, Chantal. How are you today?

Chantal Roberts:

Oh, I'm eh because you know, yeah. I'm like, eh, because I didn't I didn't sleep last night.

William Auten:

So a little under the weather.

Chantal Roberts:

Yeah, you know, a little cranky and all of that kind of stuff. So I'm I might be more cranky than usual, which will be ironic, or I don't know, something new, I suppose. Um broad shoulders, I can uh yeah, and so you know what people should do is uh share and comment and like and subscribe to the podcast so they can hear me be more cranky because I didn't get enough sleep in the evening or whatever. Yeah, been up since like 3:30.

William Auten:

You are you are radiant as usual, so whatever you're talking about, you're hide hiding it well. So today is uh inaugural um flight with my stand-up desk.

Chantal Roberts:

So I could tell something was different. You you were looking, I was like, You too you taller today? Yeah, you're taller today. What's what's going on?

William Auten:

Everything behind me looks shorter, I think is what the deal is.

Chantal Roberts:

It's all about perspective. It's all about perspective. We are talking about something um that that comes up a lot in insurance claims, especially liability claims in this time of year, uh, which is slip and falls. Trip and falls, you know.

William Auten:

Yes, well, we we actually categorize them differently here. Uh trip and fall is a little different than a slip and fall because there are the mechanics are just a lot different. Um, and there's you know, different reasons for a trip versus a slip, and uh notice issues are different on those types of claims as well.

Chantal Roberts:

So uh that would that would fascinate me. Go ahead.

William Auten:

Yeah, well, we treat them, you know, we have separate categories for them.

Chantal Roberts:

And um uh so we're gonna stick solely with with slip and falls today because usually I put them all together because yes, I mean, you know, they are kind of separate with a trip and fall. Obviously, you're going to be tripping over something like a rug kind of bunched up or whatever versus a slip and fall, which is a slippery situation like ice or water or or something to that effect. But um I always have categorized them together, but I didn't realize that the notice is different. So today we're gonna spoke focus specifically on slip and falls. Is that right?

William Auten:

That's right. And I don't think there's a when it comes to notice, I don't I don't think there's any legal issues that we that that um that bear on a slip versus a trip. Uh it's just the discovery process that we go through. What we're looking for is much different. So uh trip and falls are gonna be uh sidewalk, a lip on the sidewalk, maybe, or um a bunched up rug. Uh we any anybody who falls down a set of stairs, we put that in the category of trip and falls. Um now if the stairs are icy, we can call that a slip and fall.

Chantal Roberts:

So would we go how what would that be? Would that be a a strip? A strip and a strip and fall. Which would be a whole nother category.

William Auten:

Yeah, we don't have that category, but that would be an interesting claim to hear.

Chantal Roberts:

That would be an interesting claim. Um so so when people hear slip and falls, what do you think um usually people get wrong right out of the gate?

William Auten:

Usually what they get wrong right out of the gate. Um wow. That's interesting. Um I can't tell you what they usually get wrong right out of the gate because there's so many things that can uh muck up the investigation or change the course of the investigation, I should say.

Chantal Roberts:

I would think that one of the first things would be, and you comment and you you wrote about this on LinkedIn the other day, is not doing that scene investigation right away. Sure. You know, because especially if we're talking about a slip and fall where there's an icy situation, um, you know, we're talking about weather. So uh coming in the south, it can sleet and ice up, but by you know, the next day it's melted. And so getting those photographs of the icy environment or asking your insured to at least get some, uh, which may not be the best, but you know.

William Auten:

Yeah, well, oftentimes we'll like we just received an assignment today that that uh the incident happened on October 30th. Um so we can run out to the scene today, but it's probably gonna be different in terms of weather, you know, right. Uh whether there was ice that day or not, I don't know. Yeah, I do know between then and now there's been a lot of different types of weather. Uh as I said earlier, today's 48 degrees. Um, two weeks ago it was like 20 degrees. So um so yeah, but getting out there right away is definitely um something we have to do right a uh right off the bat. Um and if if we know it happened today, ideally we'll get out there today and take a look at it. Um not always possible.

Chantal Roberts:

And for the adjusters who can't get out there, like if you're a desk adjuster or whatever, assigning someone like Bill who's your eyes and ears, like you're independent, you know, and asking them, hey, could you swing by on your way home or something? I mean, we we need to get pictures today. Uh it's it's very, very important not to let those things sit.

William Auten:

When it comes to preserving a scene, the best way to do it in slip and fall cases, whether it's inside slip and falls in restaurants or you know, grocery stores or whatever, or outside is security camera footage because that'll capture it in real time and you'll be uh able to actually see what the conditions were as it happened. Um so uh if you are a property owner, especially a commercial property owner and you don't have cameras, you don't have to spend a ton of money to get a system in place. Um, you know, there's there's a lot of cheap uh options out there that uh that do a pretty good job. So I would encourage people to do that.

Chantal Roberts:

So again, the other thing for the adjusters to do would be to to ask your insured, hey, don't uh you know, save that, save that um video.

William Auten:

Yeah, don't delete it.

Chantal Roberts:

Yeah, and be aware that sometimes it it's like on a 24-hour, you know, they delete on 24 hours or 48 hours or 72 hours. I mean, it it's it's oftentimes very short. So again, I know you're busy, uh, but when you get these new claims that say slip and fall or whatever, it's it's of paramount importance that we secure that scene right then and there.

William Auten:

I would say if your system deletes things within uh hours instead of days or weeks, that you need to invest in a new system. Um, and maybe your system is really outdated because a lot of the very inexpensive systems today will save videos for 30 days. I have one at my home, it's cheap. And uh I I should I should find out if they have affiliate links and I'll put them on my website because they're they're they're uh really inexpensive. They save videos for 30 days. And um anyway, uh preserving evidence is uh one of the things that um a common thread throughout any kind of claim we have. So when we know or suspect that there is um video, we will send a preservation letter to the insured asking them directing them uh to make sure they save that. And oftentimes the first letter from the attorney will do that as well.

Chantal Roberts:

Yeah.

William Auten:

Um, they'll issue a letter that some of them are very, very long. Uh, we've got some notice letters from attorneys that are three or four pages outlining all of the evidence that they want them to preserve, and they're a little heavily worded and spoiliation, yeah, yeah. But uh, but if you can if you can save those videos, that's uh most important.

Chantal Roberts:

Yeah, and that's all about like notice and loss prevention, basically. Uh because it again, it's us all getting on the same page. Uh uh, and and and you're right, video is like the best way to see that because then it's not anyone's interpretation of what happened.

William Auten:

So yeah, and if you're a property owner and you you have uh and you don't have cameras out there, chances are you have a cell phone, get out there and take some photos to preserve it yourself. Uh that's that's something that uh not only will help your insurance company to defend the case if they need to, but uh and even if it's bad news, that's fine. You know, uh if it looks terrible, capture it, you know, so that we know what we're facing so that the decisions can be be made properly early on.

Chantal Roberts:

I think that's a very good thing to point out, Bill, is that even if it's it's bad news, speaking from or to the either homeowner or business owner or whatever, and then also speaking to the adjusters, our job is to pay covered claims. I mean, that that is literally the reason why insurance exists, right? Is to pay covered claims. And so if it's bad, quote unquote, meaning you did have water on the floor or you had a grape on the floor and you didn't notice it or whatever, and someone slipped on it, um that's okay because that's what you got insurance for, so to speak. And so then you just take these pictures of the uh of the situation, you send them off to your adjuster, and as an adjuster, you look at these, you apply the ABCD rules of liability, you look at coverages, and if everything ticks off as a yes, you get a green light, then you pay the claim, and we move on.

William Auten:

Don't just gloss over the ABCD uh because there may be some new listeners who haven't heard you uh talk about that yet. So what is A B C D?

Chantal Roberts:

Are we gonna do our alphabet ABCD? No, um okay, so I call it the ABCD rules of liability or negligence, and there are four features of negligence that you have to have all yeses to in order for liability to be triggered for the injured. So does the insured have a duty, right? A duty to keep the property safe, to not have water on the floor, to not have icy steps, to not have food on the floor or ice on the floor where people would slip and fall in a restaurant or something like that, right? Do they have a duty? Okay, that's the A. Was that duty breached? That's the B breached. That means did the insured have water on the floor, ice on the steps, uh, you know, grapes in the grocery store aisle, whatever, banana peels, banana peels. We haven't talked about banana peels. Then is and if they do, if they've breached that duty, we've got two yeses so far. The C is did the breach of that duty cause the accident? Because again, we have to be able to link that duty, the breach of duty, and uh to the accident. Did did did that cause that accident, the proximate cause? And if the answer is yes, then we move on to the next one, which is did this breach of the duty create damages? D for damages. And if you've got damages, then woo-hoo, you've got all four yeses right there, A, B, C, D. And then we also link this over to coverage. Do we have coverage? Because again, and and and I tell my students this, it probably took me five years. I knew it intuitively, but I just want to normalize this for people. I knew it intuitively, but I probably didn't recognize it and be able to say it out loud uh to until much later in my career. Liability is a two-step process. You not only go through your ABCD rules, but you also look at coverage. So it is perfectly uh plausible in the world of claims to have your insured be liable for an accident, to be negligent for an accident, to be responsible for an accident, but there not be any coverage. And if that's the and if that's the case, we don't pay. The insurance company does not pay because you don't have two yeses. It is perfectly plausible that you would have coverage and you didn't breach a duty or something like that. You still have a yes-no. And in that case, we wouldn't pay. And the issue is that many, many claimants, because they're insurance consumers, don't understand that. They think I slipped and fell at this store or at the convenience gas station, you know, or outside on the steps or whatever, therefore you're responsible.

William Auten:

Right. Maybe, maybe not. Yeah.

Chantal Roberts:

Yeah.

William Auten:

And uh as far as there being no coverage for most slip and fall claims, there's probably going to be coverage, but not always. Um, if it's an employee, there's not going to be any coverage under the general liability portion of the policy. Um, if you didn't pay your premium and it was canceled, there's going to be no coverage for it. So uh there's lots of reasons why there could be no coverage in a given scenario, but um yeah, so uh liability. Um you've used the word notice several times here, so let's talk about no notice and uh um how that triggers liability uh and negligence in a scenario where someone you know slips and falls. Um of the various types of slip and falls, we've got outside with ice and snow, we've got inside with banana peels, grapes, spilled liquids, ice cream, whatever. Um and the question is uh was that hazardous condition known to the policy holder or the property owner um prior to the incident happening?

Chantal Roberts:

And I think this goes to the duty breached uh part of it.

William Auten:

Um Right, because if they should have if they know if they had to notice and they didn't do anything, then they breached their duty.

Chantal Roberts:

Right.

William Auten:

But the big question for an adjuster is finding out whether or not they knew of the condition. And so in weather conditions, you can argue, well, everybody has access to what the weather's doing. You just have to look out a window.

Chantal Roberts:

Right.

William Auten:

Um in a in a store or a grocery store or a diner, uh things are different. And I can give an example.

Chantal Roberts:

Please do, because I've got an example for weather.

William Auten:

Great. I've got uh I've got a restaurant example. This was a um kind of a buffet restaurant, so people could go up and just fill their plates with whatever. And uh this place was really good. They had cameras everywhere, thankfully. And they also had uh staff. Um, the protocol for the staff was to walk up and down the aisles and make a round, and it would take them 20 minutes to go through the entire uh building. So every 20 minutes there were uh two or three employees that would have to come back up to the station and initial a card showing that they they actually made their their rounds.

Chantal Roberts:

That's brilliant.

William Auten:

Really good documentation.

Chantal Roberts:

Be sure y'all get this as adjusters when you have yeah, ask for these things.

William Auten:

Ideally, you'll have a restaurant that does this, but not all restaurants do this.

Chantal Roberts:

No, but you should still ask.

William Auten:

Yes, yep.

Chantal Roberts:

And then put that in your notes, too, that you've asked for it and insure doesn't have it.

William Auten:

Yeah, and if you're a restaurant owner, get it do something. Yes, do something.

Chantal Roberts:

Go ahead.

William Auten:

It's a pad of paper, you know.

Chantal Roberts:

Yes, absolutely.

William Auten:

Um so the cameras showed that this person walked down the aisle with a broom and a sweeper and they were doing their thing. Um, and less than a minute later, this young young lad with a with an ice cream cone came running down the aisle and a big glob of ice cream fell off of his thing, uh his ice cream cone. And then a woman, an older woman came by, didn't see it, stepped on it, slipped, fell, and hurt her shoulder. So the question we had to ask is did the restaurant have notice, or should they have known, uh, did they make an effort to know?

Chantal Roberts:

Right. And I would say they had no notice because our employee had just gone down the aisle, there was an intervening incident, which is the kid, you know, running the the ice cream dropping, and then the woman, you know, having a a slip and fall in that instance. But you tell me what what you think.

William Auten:

Yeah, that's pretty much the outcome that we had. Um I think at the end of the day, we wound up settling just for out-of-pocket um medical expenses, uh, which is automatic under MedPay provision anyway, doesn't require liability. Um, so that was a happy ending there. And uh but the the net of that story is that um the net result rather is that we have to have notice. Um and if you're making efforts to clean up during changing conditions, um you're you kind of get a uh not a pass, but um you get some latitude when it comes to liability if you can demonstrate that you're making efforts. And um uh th we have the uh storm in progress defense for claims outside.

Chantal Roberts:

That's what I was gonna talk about.

William Auten:

And that's what you can go ahead and explain what that is.

Chantal Roberts:

Yeah, so I have uh some Um colleagues, I guess, or or people I know or whatever. And uh they live in apartments and they swear up and down that they're uh landlords or slum lords. And it's mostly because uh right after uh Kansas blizzard has come down, and uh there's not someone sweeping off or or shoveling the stairs and the the walks and all of that to the parking lots and and de-icing all of that. And and I talk about the fact that A, we've got a storm in progress. You know, so nobody is supposed to be out at 2 a.m. uh shoveling the sidewalk, you know, you're not you're not gonna get in and you're not gonna get dinged for that. Right. You know, you're not gonna be liable for that. You're I don't even think, and again, not an attorney, not offering legal advice, but I don't even think the law requires that. And then even after the storm is passed, you you get some time. I mean, it's not like you gotta wait until the last snowflake drops, and then you gotta start shoveling really quick. Right. You know what I'm saying? I mean, you get, I don't know, 12 hours or 24 hours or you know, something like that. You get a minute, basically. And these bless their hearts, as we say in the South, these these people just do not understand that. And they and they do refuse to go outside because they're deathly afraid that they're gonna slip and fall and break something. And I'm like, this is fine.

William Auten:

Uh I'm sure your slumlord excellent risk management strategy is to not go out when it's icy.

Chantal Roberts:

Yes, I'm sure your slumlord appreciates this, but also um uh yeah, they wouldn't be even if you did, it's not their fault, you know. Because again, here's something we haven't talked about is that it is also the person who is walking, meaning the claimant. Um, it's their duty to keep a lookout. We talked about, you know, the duties to keep a lookout when we were talking about auto claims a couple of episodes back. Same thing. Like the woman who slipped and fell on ice cream, she's supposed to be looking where she's going.

William Auten:

Right.

Chantal Roberts:

You know, so it's not all of the insured's fault.

William Auten:

On slip and fall claims, and I just had a conversation with a a claimant about this who had a fairly serious injury. And you know, I I explained that uh in weather scenarios, uh especially last year, where we had layers and layers of ice buildup over a couple, probably two months. And there were sort shortages shortages of uh salt and and ice mitigation materials uh in the area. You just couldn't get anything. So people, property owners were really uh in a tough spot. Um that being said, uh property owners still invite people to their place. Even the restaurant, uh the buffet that I had discussed earlier, um, you know, they're they're inviting people to this environment where you've got random people walking and children walking around with plates full of food. Chances are that you know, that's an environment where that kind of thing is prone to happen. That's why they have the protocol in place. Uh, but you know, how much is is enough? Like, should they have somebody going down those aisles every five minutes or every two minutes? Or every, you know.

Chantal Roberts:

And that's a good that's a good point, too. Um we've probably beaten this, beaten this to death, but it it's just what a quote reasonable end quote person would do, and that's going to be a jury member.

William Auten:

Right. And that's a pretty squishy kind of definition, but that is the definition of you know, how you did that's how you determine those ABCDs is what would a reason reasonable person think about that duty and the breach of the duty. Um anyway, uh the um as far as apportioning liability in a silk and fall case, uh yeah, I think that in uh this climate where we are, when you have winter conditions, I don't think anybody can be tagged as 100% liable for uh for the incident. Um I think if there is any uh shared liability, it's apportioned uh between both parties. But uh I find it difficult to assign less than 50% to the person actually walking. Um I think that they have a duty to watch where they're going, to wear the right footwear, um to you know be cognizant of the the the scenario they're putting themselves into. Um that being said, the property owner should keep the place safe. Right.

Chantal Roberts:

That's part of their duty.

William Auten:

Yeah.

Chantal Roberts:

And um so how do you have that conversation? Because I think a lot of times adjusters have difficulties with conversations with claimants. Because of course it's so much easier just to accept 100% liability and pay 100% of the bills. But to tell a claimant, look, I think that you're at least, you know, 35% at fault because um you weren't wearing, you know, you or you were wearing high heels walking on ice, even though it was gonna be a gala event, you you could have worn tennis shoes and then changed, you know, as soon as you had gotten inside or something. Um uh most people don't like to hear that they're at fault. So how what's what's how do you talk to people like that about that?

William Auten:

Well, the first thing is to um be sympathetic to their situation and and you know, tell them that you understand the grief that they're going through and that this injury that they've had, um, that you've had experience with it from a claim standpoint, and that you understand it takes several months, uh maybe even a year to heal completely and that it's upset their lives. And um acknowledge that and and you should internalize that as an adjuster because if you don't and you come off as just um you know casting blame on them for their own injury, it's probably not gonna be received very well. Um so so acknowledge uh what they're going through um and then explain to them that there are some, you know, mechanics involved in determining liability. And um the ABCD thing is a great way to do it. Uh the way I just described uh you know, the weather conditions and how people have an obligation to navigate through icy conditions safely on their own as well. Um but then also acknowledge whether or not there's something wrong with the premises that should have been corrected. Um and say, look, you know, uh in an ideal world, uh there'd be dry pavement for you with uh with no ice, but that wasn't the case that day. And um, you know, who's at fault for that? Well, Mother Nature played a pretty big role, so but she doesn't have an insurance policy, so yeah, unfortunately, unfortunately.

Chantal Roberts:

Otherwise, she'd probably be bankrupt or at least like self-insured, maybe like a huge you know, a deductible or whatever. But you know, something um you're you're talking about uh uh mentioning these things, and and we should talk about the fact that this is one of the very first kind of conversations that you would have um with the claimant. Um, maybe not your first conversation because you're still gathering information, but definitely when you decide what liability is, you um that's when you need to be having that conversation. You and you the earlier you have it, the better it's going to be for you. And yes, they and they and they can get a contract or not uh not contractor, excuse me, an attorney or whatever. Um uh because I was thinking of you know the snow, I was thinking of like snow plows and are they in subrogation, are they being brought in and um all of that stuff? But that's um just another topic, just real quick. I just wanted to finish talking about how we how we discuss splitting this liability, telling the claimant, yeah, you're kind of partially at fault too.

William Auten:

Yeah, well, I mean, you can word it that way, but um, I'm not yeah, don't say that because that's way too blunt.

Chantal Roberts:

I'm way too blunt. Don't listen to me. Why are y'all listening to me? Um, in fact, like, subscribe, and follow, and then tell everybody, don't listen to me. Um, that's what we need to say. Maybe we'll get more listeners.

William Auten:

Uh one uh one question that I like to ask um in these in just about every case is um, you know, what what was the cause of this? Yeah, what actually caused this? And uh if it was ice, they'll say the ice. And if it was uh grape, they'll say it was a grape. Um, or they may say it was the abject failure of the property owner to maintain a safe premises. I've never heard anybody say it like that, but um well, I'm gonna tell you in so many well, I actually have heard that from something like that from an attorney.

Chantal Roberts:

Yeah, well, okay, yeah, because I was going to because what I was going to say is if you hear something like that, all of your hackles should be raising because that means that there is an attorney back there somewhere.

William Auten:

Right.

Chantal Roberts:

She hasn't declared herself yet by sending a letter of representation, but there is an attorney back there, and you should pay attention to this.

William Auten:

Yep. So um I I think we've kind of nailed down notice. Um let's talk a little bit about contribution. Now you said the word subrogation, which was interesting. Um, and uh we refer to it as contribution. So in this in a snow plow situation, yeah, we'll look at the the snow plow operator or contractor uh to see what their contract says and uh what their obligations are under that contract. Um, now in New York, for a snow removal contractor to become liable for a slip and fall, they have some very strict rules under a doctrine called espinol.

Chantal Roberts:

It's a I thought you were gonna say espionage, and I'm like, ooh, let's talk about that.

William Auten:

It's not espionage, but it is espinal, and it's espinol versus uh it's over there. Uh we ref we refer to it. Um, what's that? I said it's boring. Espinol?

Chantal Roberts:

Yeah. If it's not espionage, it's boring.

William Auten:

Oh, I get it. It is pretty boring, but uh, but it outlines the duties that's uh that uh contractors have and they may become liable if if the property owner kind of relies on them. Like if you get a contract where the contractor says, Don't worry, we'll take care of everything. We're gonna make sure there's no ice and no snow, you don't have to worry about a thing. If that's kind of what their contract says, and that's kind of what they promise to do, and a verbal contract counts. Um, if that's the case, then um anybody slips and falls, it's pretty much gonna the the contractor's gonna have some shared liability here. It may not be a hundred percent, but they're definitely gonna come to the party. Um if their contract says we only come when the snow is three inches or more, and we only apply salt if you ask us to, that guy is not gonna be involved. Uh, because as long as he did what he said he was gonna do, if he was there when it was three inches and he plowed like he said he was going to, and the property owner never asked for salting services, then uh then the there's probably gonna be no contribution from from the contractor. And that's a very, very simplified kind of sure look into what Espinol says.

Chantal Roberts:

There's a lot of other things, but uh well I have a question again for for our adjusters. I'm acting, I'm acting as our new adjusters or or whatever. So let's say that we do have two people who are going to be at fault, right? Our snow plow didn't come. It it's been a foot of snow, and our snow plow didn't come. And insured didn't ask for salt. So insured is responsible for putting salt on the sidewalks while you know our snow plow is supposed to be doing the the the parking lot or whatever. And someone slips and falls. And uh I don't know, it could I I guess it would depend on if it was the parking lot or the sidewalk, uh, where they slipped and fell.

William Auten:

That makes a difference too. If the contract says they're gonna plow the parking lot and nothing about sidewalks, then that contractor is really not gonna be responsible for somebody who slips and falls on the sidewalk.

Chantal Roberts:

Because I was trying to figure out how we again have that difficult conversation with the claimant of, yeah, I'm only gonna pay, I don't know, 25%. And this contractor who's not involved in this conversation because I don't have his policy, um, I'm saying he's 75% at fault because you know their insurance company is gonna be like, yeah, we're only like 50% at fault. And anyway, point being, you got this gap.

William Auten:

And um, whatever, but that's where conversations come into play. Where if you're the adjuster for the property owner, you want to get on the phone with the adjuster for the snow removal contractor and have these conversations and and kind of work together to come to an agreement if necessary. Um, you know, it may be that you all have a different opinion about who's responsible for what. And if that's the case, then it you know it becomes a dispute that may uh end in a statute of limitations, uh, just ending the claim or uh an eventual lawsuit.

Chantal Roberts:

So yeah, or I guess you could go to arbitration. But the point though, being is maybe um, I don't know if it's joint and several liability, which we have never talked about and would probably be a good thing to talk about, but um where we would pay for all of it and then subrogate for a certain amount or or whatever.

William Auten:

Um, we never see that kind of thing. Um, where, and I don't even know if you can hear um on a third-party claim, if you if you agree to liability uh and settle it with a claim in in exchange for a release, and then you go after an at fault party, um, I think you're gonna have a bad day and spend a lot of legal uh expenses to do that.

Chantal Roberts:

Okay, right.

William Auten:

So we usually try and get them involved up front and uh get their position. Yeah.

Chantal Roberts:

This is so important. And I and again, I don't think a lot of our newer adjusters know this. In fact, there was an article in the CPCU insights this past um uh quarter talking about uh that, about how adjusters don't work together, uh, especially if it's like two things like a flood adjuster and a property damage adjuster. Um, you know, we no longer talk to one another, and that is so important. Con find out from the insured who their flood carrier is or who the um contractor or insurance company is for that and contact and work together.

William Auten:

Yep. Put them on notice right away and uh get them involved if they ignore you. Certified letters um help. Sometimes I need to go to their office and knock on the door to get some attention.

Chantal Roberts:

Uh I have found, yeah. No, I I totally agree. I I have also found there was a letter that I used to send. It was a standardized letter that we had in our group, which would be sent to that at fault carriers or partially at fault carriers insured. And it says, Hey, we've been reaching out to you know, your adjuster at you know, insurance are us and blah, blah, blah. And um, they're not calling us back or anything. Uh, gonna let you know that we still find you responsible. And if so, we're gonna bring you into the into a lawsuit. You need to tell your adjuster to call us, and then I would CC that adjuster and send it all, like you said, certified, blah, blah, blah. And amazingly, amazingly, I would get a phone call.

William Auten:

Yeah.

Chantal Roberts:

I don't know why, but I would get a phone call.

William Auten:

Well, at the end of the day, the responsible parties are actually the the parties involved. The insurance companies are the kind of the afterthought that indemnify. And uh lawsuits, again, are against the property owner or the the the tort feasor, they're not against the insurance company. It can be, you can sue an insurance company, but in most third-party claims, your claim is against the the person that you believe caused your injury.

Chantal Roberts:

Exactly. Exactly. So we have done uh the first steps uh and and we've accepted liability. Now the issue is we need to gather medical records. And uh there are um, you know, Medicare, Medicaid, ERISA plans, this sort of thing. And then of course, we have that whole thing where what is it, CMS. We have to declare the uh claimant to CMS to find out if they are a Medicare or Medicaid recipient and if Medicare, Medicaid has been paying. Uh so can you kind of walk us through that and what the issues are if we don't do this?

William Auten:

Yeah. So let's see.

Chantal Roberts:

It's like, oh, there's so much. Yeah.

William Auten:

So everybody, uh most people have some sort of health insurance available to them in whether even if it's just Medicaid, uh, it could be that, it could be Medicare if you're over 65, or if you have other problems that you're eligible for Medicare. And uh the uh private insurance could also be there. Um, and then uh that would be either a private insurance company or, like you said, an ERISA plan where your employer is actually self-insured for um health insurance benefits for their employees. And in New York, if you're just a private insurance company, you can't subrogate for uh damages. That changed about 2009, I think. Um so if you've got like Excelis Blue Cross Blue Shield here in New York, uh any benefits that they pay to you for your medical bills, uh they can't go after the at fault party to recover any of those benefits.

Chantal Roberts:

That's interesting.

William Auten:

But they c the only way you can do that is if it's an ERISA plan. And also in New York, uh well i I think this applies to every state, but if Uh Medicaid can put a lien on your settlement. Yes. So anything that they pay, they're going to want uh to be paid first, and then CMS or Medicare, they're they're gonna be uh there with their handout as well. So carriers need to have a mechanism in place to report your claim to Medicare. Um carriers have that in place and they do that. We don't do that here.

Chantal Roberts:

We did it um ourselves at uh affirmative risk management when when we were the third-party administrator for some syndicates in London. And uh you might be getting to what some of the penalties are. Uh but I do want to mention real quick, because you mentioned if there are other issues that you can end up on Medicare, but usually when we think of Medicare, we think of elderly like 65 and over, and Medicaid for impoverished or uh people and people who don't have private insurance, yes. Uh but I want to point out that there can be three-year-olds who are on Medicare. So it's not just for the elderly. Uh so I I had many an attorney when I was working claims go, my my my client is 17 years old, and I'm like, Yeah, I know, but they can be on Medicare uh for various reasons. I'm gonna need the big five.

William Auten:

That's why you need to report every claim to CMS.

Chantal Roberts:

Yes, every single claim. And do you know why? I figured, Bill, you're gonna tell why. Otherwise, I want to tell why.

William Auten:

Tell why.

Chantal Roberts:

Oh, okay. Because it is a thousand dollar a day fine for every day that you do not report that person. So, and and and that could put any kind of insurance company out of business if you think about it. I mean, yeah, it is kind of like a no-crap kind of deal. And again, many uh plaintiff attorney would be like, Yeah, yeah, don't worry about it. We will pay Medicare or Medicaid or whatever. And I'm like, fine. Uh, I want you to sign me over an indemnity agreement saying that you're gonna pay this thousand dollar a day fine until, and I mean, it doesn't like, oops, we just figured it out. No, no, no. It's like from when it starts to when it finally gets over, and you know how fast the government moves. Glaciers move faster. I think the ice age like ended before Congress will like pass a bill or something. I mean, so this is something you need to do early, like get those people at least started through the CMS system and find out at at least before you try and settle it.

William Auten:

Yes, yes, because you really can't have, and that's one of my biggest gripes about that whole CMS system is that when you're working with a person on on Medicare who's not represented by an attorney, and I try and explain to them that we really can't talk about settlement until we have the information from CMS. It sounds fake. I I yeah, they don't want to hear it, they don't believe it, they just uh they just want their their bills paid.

Chantal Roberts:

Because let me um let's just go over this real quick and then and then we can we can probably move on to uh reviewing medical records or liens or valuations and negotiations and stuff like that, because this is all very much part of it, because it is so backwards. So when a person who is on Medicare has finished treatment uh and you and you've already decl, you know, gone to CMS and Medicare says yes, they're receiving uh their Medicare or they have Medicare, at the end, when they finish treating, you send another letter back to Medicare saying, okay, tell me how much treatment they got for the for these particular like ICD 10 codes or CPT codes or whatever for that particular injury for this particular accident. Medicare will come back and say, This is the tentative amount. And you're like, great, that's not what I need to settle the claim. This is the tentative amount. I need the final amount. So um, you're like, okay, great, what's the final amount? And they'll um they want you to go back to the claimant and go, this is the tentative amount. So this is the tentative settlement amount that I'm gonna do, but I have to wait until CMS or the Center of Medical, whatever it is, um tells me what the final amount is. So you push back again, and then Medicare will come back and say, Yep, that's the final amount. And then you're like, Great, I I'm gonna pay them. Um, we're gonna settle. But I mean, you see, there's like three steps, and it sounds super shady, super shady.

William Auten:

It's tough for them to get their brain around. Um just when when you say, Well, uh, Medic Medicare has um a claim to anything they've paid before we pay you. Sometimes you hear them go, oh, yeah, you know, so they kind of get it because they've been exposed to the, you know.

Chantal Roberts:

We use we used to, and then we'll move on, I swear. Um, we used to have a letter that explained everything that we would give our claimants along with literally, literally a flow chart, because um the letter is long because it's the government. Uh and sometimes I need pictures because I've got a short attention span. So anyway, that's that's another thing to think about. I don't know if if you are listening and you're with, I don't know, Allstate or State Farm or whatever, you don't have one. That's okay, you can't send it. But if you're a smaller company like Bill, maybe you do.

William Auten:

There you go. And uh Medicaid is different. Uh well, here in New York, it could be different in other states. I don't know. I know Pennsylvania is like this, but you go to the county, uh, you go to the there's uh an office in each county that will handle the Medicaid for that person.

Chantal Roberts:

Let's also talk about liens. Massachusetts has a lien, and I think it's Pennsylvania too, where you have to call them and find out if there is any past due child support.

William Auten:

Oh, yeah, I've seen or taxes. That's interesting. Yeah.

Chantal Roberts:

Um and and I I remember this one case. God, I think the guy got like a dollar fifty left because he had not paid child support. I mean, it it's bad. We're laughing, but we're also that poor child.

William Auten:

Right.

Chantal Roberts:

You know, do your duty anyway. That's not this is not the point of the podcast. Point of the podcast is to educate you. So as an adjuster, you gotta find out all of these little bitty things that we have to know about. Yeah, how does valuation and negotiation go, Bill?

William Auten:

So once you uh once you figure out what this claim and the injury is worth, and uh there's you know, we've talked to folks who take the position that uh carriers should be making the offer up front. Um most of my carriers don't do that. Um it's different, you know, wherever you go, people's um opinion about that can can vary. Uh I I've never seen a study as to whether one way or the other yields better results. One way or the other, a conversation has to be had about how much it's gonna take to get a release signed.

Chantal Roberts:

And um how do they do it if they don't offer make an offer first?

William Auten:

Like because ask what ask for a demand, ask for what it'll take to settle the claim.

Chantal Roberts:

Oh, okay, okay, okay.

William Auten:

Explain special damages, explain general damages and uh and just say, okay, you know, um what are you looking for to settle this? Okay. You know, XYZ. Uh somebody's gonna make the first move. Whether it's the carrier it's it's um I've done I've done it both ways, still do it both ways. It depends on the authority that you know. We we work at the behest of insurance carriers who give us authority, right? So um we'll go off of their their kind of um direction.

Chantal Roberts:

Yeah, I've I've done that both ways as well. It's it's usually the attorneys who will who will make you know a demand first, like by sending you a demand package or whatever.

William Auten:

Yeah, if there's an attorney involved, uh most often they'll we we expect them to send a demand package.

Chantal Roberts:

Um but for for an unrepresented claimant, I always made, you know, the first move. Um yeah, I always called them and explained, okay, so you know, this is what I'm seeing, yeah, blah, blah, blah. We'll probably get into that. So I'll let you talk more um about that.

William Auten:

Well, the the the uh the approach where you make the offer first, especially like if you have an attorney and you see the case, you got all the medical records, you you got your head around liability. Um, and and by the way, when it comes to liability, you don't necessarily uh determine liability and then get records. Um a lot of times you can't really figure liability out until you get the records. Like, was there a toxicology report? Was this person, you know, uh under the influence? You know, so there's anyway, that order can be moved around. But the uh point is that when you when you button all that stuff up, if you approach the attorney and say, look, we we see this as X amount of dollars. The theory is that by doing that, you're grounding the the attorney and and letting them know, you know, this is not uh a claim up here, it's not a claim down here, we think it's right about here. And um that in some theories will prevent the attorney from saying, Well, I want your policy limits um when it's not a policy limits case. So uh whether that work like nine times out of ten, when you do that, that they're gonna they're gonna double or triple their dem that for their demand anyway.

Chantal Roberts:

Right.

William Auten:

And they're gonna say, I don't care what you think, this is what we think it's worth.

Chantal Roberts:

Sure.

William Auten:

And the the conversation nets out that you're really just kind of finding common ground as best you can. And when you can't, then it goes to suit. And then they do this in a you know settlement conference later.

Chantal Roberts:

I do want to point out though, something that I don't think a lot of adjusters are familiar with, and uh at least not anymore. I don't think they're being taught this, so to speak, quote unquote taught, uh, is that we have to let our insureds know what the offers and the demands are. And FYI, I just want to uh do a little definition thing. The insurance company makes the offer, and the plaintiff, meaning the claimant, makes a demand. So just that's the these are the two words that we're using. And what you should do as an adjuster is send out a letter to the insured saying, uh, dear Mr. Insured, I am making an offer of $1,000 to settle. And then the next time that it comes back, uh, you know, dear Mr. Insured, the plaintiff has demanded $15 billion and I've made an offer of $1,500. Please let me know if you receive lawsuit paperwork because failure to do so or failure to answer in a timely manner could, you know, jeopardize coverage, yada, yada, yada, yada, yada.

William Auten:

Yeah, I know in some states that there's an obligation to provide a copy of the demand letter to a policyholder. And I don't think that's the case in every state. I noticed that's the case in New York here.

Chantal Roberts:

I I actually have not heard that, but I do know in Texas um and some of the more um, I guess, plaintiff-oriented states, there or um, they they do have that. And you might as well just do it. Keep your insured appraised because I've seen too many lawsuits that come down that says this could have been settled within policy limits. It wasn't, so I'm suing for bad faith, and then I get involved.

William Auten:

Right, you know, right. I think that if you uh are dealing with a claim that could potentially approach policy limits, then you definitely need to notify the insured of what's going on. And um we call it an excess letter that there's a potential for an excess claim. There you go. You know, maybe talk to their own attorney um uh about that.

Chantal Roberts:

So you had mentioned if if if we're just like at loggerheads with either the claimant or the their attorney, you know, it could go, it could go to litigation, or if you know, we're just running out of time, right? And we get up to the statute of limitations or whatever, so they have to file suit. Um, you know, you call the insured, by the way, and say, hey, you might be receiving a lawsuit, you need to let me know immediately, because there if we don't answer on time, there could be a coverage issue, right? Um, so and then of course you write that down and you document that in your notes. So um, real quick, what are the steps uh in in litigation?

William Auten:

In litigation, uh they first uh file a summons and complaint and then they uh it then they serve that upon the insured with a process server. Um and then once the insured is served, uh they should be letting their insurance company know right away that this net insurance company will assign the defense adjust uh a defense attorney who will then file an answer. And um and then it's just a bunch of motion practice where uh one side demands uh basically evidence or discovery from the other side and they go back and forth sometimes for years doing that. Uh depositions will be taken. Um and then sometimes you go through mediation Yeah, in most cases the judge will call for a settlement conference or get everybody in a room and he'll say, Look, can you guys work this out so we don't have to go to trial? Yeah, if they're uh if they can't reach an agreement for whatever reason and there's issues of fact, then what'll happen is there'll be a uh what's called a note of issue filed, and that basically sets forth the uh date that the trial process will start. They'll go through vor deer and select a jury. And then um then there's a trial. And then uh that trial could be bifurcated into liability or damages. Um not always, but and I'm not real familiar with that process because by the time it gets there, we're uh investigating first loss, you know, first notice losses uh doing other stuff. So um but that's the eventuality of it. And then once um a settlement is reached, then the uh plaintiff has to discontinue, has to file a stipulation of discontinuance and that uh closes down the litigation piece of it.

Chantal Roberts:

Right.

William Auten:

But once the release is signed, then it's uh kind of an agreement that the claim is extinguished from now until the end of the world.

Chantal Roberts:

Exactly. Yeah, and even if we don't go to um litigation, we still want to get that full and final release. And I do want to point out that it is always a good idea to find out if the claimant is married and get a husband-wife release because the spouse could have a claim loss of consortium, not just about sex, guys. It's not just about sex, it's about household loss of household services like um cleaning or mowing the lawn or gardening or picking up the kids or ironing or you know, whatever. So make sure that we get that um release of all claims. If they are children, they have to usually have to have an ad litum, which does mean that we go to a court real quick because the court has to make sure that we are protecting the children and they have a statute for what two years after their 18th birthday, or whatever the statute date is. Um two years, one year, three years, whatever after their 18th birthday.

William Auten:

Yeah, yeah. So that's the anatomy of a slip and fall claim.

Chantal Roberts:

Wow. This is this is, I mean, it's it's really it's in depth, you know, and it's hard.

William Auten:

And and um so the funny thing is, any one component of what we talked about today, we could do a whole episode on.

Chantal Roberts:

Oh, absolutely, absolutely, absolutely. But you know what we're gonna do um in two weeks, since we're still gonna be talking about the winter wonderlands, is uh navigating auto liability. Yes, and ice and snow.

William Auten:

So the funny thing is a lot of the the structural part of the of a claim from start to finish on a slip and fall case is gonna apply to just about any liability claim. Yes. Um the difference is going to be the components of the investigation, how you're determining fault, um, lots of other things. So medical bills with no fault.

Chantal Roberts:

Oh, you know, um, it's just so much fun.

unknown:

Yeah.

Chantal Roberts:

I gotta say, not a big fan. I mean, I I get the point of something like Michigan or something like that where they have the no fault things, but I get confused over the threshold, damage thresholds, monetary thresholds, verbal thresholds, whatever. But it, hey, you know what? We don't have to talk about that now because we're finished. Um, we will see you in two weeks, I guess.

William Auten:

Yes, ma'am.

Chantal Roberts:

Thank you. See you later.

William Auten:

Bye-bye.

Chantal Roberts:

Bye.

William Auten:

Thanks for joining us on the Art of Adjusting Podcast, where we talk about life as an insurance adjuster. Hit that subscribe button real quick and tell all of your adjuster friends to check this out as well. For independent adjusting services, go to www.autin.claims. And for anyone interested in working as an independent liability adjuster, go to the contact us tab to join our roster.

Chantal Roberts:

So this wraps up another Art of Adjusting podcast. If you enjoyed this podcast or this episode, please give us five stars and a review. It does help the algorithm pick us up. In the meantime, you can contact me at theartofadjusting.com for consulting and training purposes.

Head Shot

Chantal M. Roberts, CPCU

Co-host
Head Shot

Heather Blevins, CPCU

Co-host
Head Shot

Sandy Avina, MBA

Co-host
Head Shot

William Auten

Co-host
Head Shot

Nicholas Kearns

Editor