5/23/2017

Choosing Your Words Wisely

How we say things can alter perceptions as much as what we are saying.

By Tom Glassman

“What are words for when no one listens? ...What little filters through is giving you the wrong impression. It’s a sorry state I say to myself.”  

If you grew up on MTV in the early 1980s like I did, you recognize these lyrics to “Words” by Missing Persons. They teach a valuable lesson to those of us working in insurance claims—to make certain the words we choose properly, effectively, and accurately communicate the points that we are trying to make. You can express yourself any number of ways, but how you choose to say it determines the ultimate impact and whether you get your point across.  

Many times, we communicate about matters where the actual facts are, for the most part, undisputed. So how we convey our message greatly impacts how it is received, perceived, and understood by policyholders, judges, juries, and the general public.

Sometimes you will need to communicate a claims decision to someone who will not like or agree with it. While the tone you take may not change their minds, an effective choice of words may at least present your position in a better context. There are countless situations that we all regularly encounter where we have the ability to control the message, but only if we choose our words wisely.

In insurance claims, there are a number of different ways to describe an event. Consider the most basic of auto claims: Was what occurred an “accident,” a “fender-bender,” a “crash,” or a “collision”? Each of these words elicits a very different reaction and perception.  

For decades, “accident” was the prevailing term, not only in the insurance industry and legal community, but also in everyday parlance. There is now a movement afoot in a number of states and cities to replace “accident” with “crash” in legislation and codes. This has already occurred in Nevada, New York City, and San Francisco. The rationale is that “accident” suggests a loss that was not caused by human error or was not preventable. The supposed perception is the word “accident” implicitly exonerates the at-fault party of any responsibility.    

“Concussion” carries much more ominous overtones now than it did, say, even five years ago. Back then, many of us were quick to laugh off a concussion as someone simply having his “bell rung.” Now when we hear the word “concussion,” we think of chronic traumatic encephalopathy and traumatic brain injuries. What once was a claim where the initial reaction was the claimant would be fine in a few days has now become a claim where the visceral reaction is to think of a more complicated prognosis and a higher exposure.

Language is very malleable when discussing bodily injuries. At first blush, chronic paronychia sounds worrisome, but in reality it is just a hangnail. Is the injury a bruise, or is it a hematoma? Does the claimant have a laceration, or only a cut? Does she have swelling, or edema? Is the diagnosis a broken bone, or a fracture? Is the injury whiplash, or a cervical sprain/strain? Is cephalgia worse than a headache?

Changing Times

In the song “No More Words,” Berlin laments, “Remember when the words were new, they carried a meaning, a feeling so true.” Some longstanding words conjure up images that are either inaccurate or out of date.  

“Claims adjuster” has been used for decades not only by the general public, but also by many people in the claims industry, regardless of the titles insurers give to their employees. There already has been considerable discussion within CLM about how, in this day and age, “resolution professional” is a more accurate and preferred description of what many insurance claims professionals do on a daily basis.

There are similar points, too, throughout every phase of the claims process. Is the person you are dealing with a “customer,” “claimant,” “insured,” or a “policyholder”? Claims service is at the forefront now of so many insurance commercials, and this leads to higher expectations for insurers, so the question must be taken seriously.  

When faced with a coverage question, many times the soundest approach is filing a declaratory judgment action. This usually protects the insurer from bad faith (extracontractual?) exposure, and presents the carrier in a much better light than a company that instead unilaterally denied coverage. But think how “declaratory judgment action” might be perceived by someone who has no insurance or legal background.

A clever plaintiff’s attorney will spin a declaratory judgment action to a jury as his client (who did nothing wrong) being sued by his own insurance company. Think of how jury members might react to that description on a visceral level, long before they are provided additional facts and understand the context.

Nearly every insurance policy contains a provision allowing it to question its insured under oath as part of the claims investigation process. “Examination under oath,” or EUO, has been the accepted industry phrase for decades. To some people, “examination” stirs up images of a policyholder being grilled by the insurer’s attorney, perhaps without having his own counsel present. Some insurers no longer refer to this as an EUO in their policies, instead using “questions under oath” to more accurately describe the process not as an interrogation, but as a gathering of facts to make an informed and correct coverage decision.  

“Denial” certainly has sinister overtones, and makes many people think of someone gleefully using a large red stamp. It also makes people think of the infamous scene in the 1997 movie “The Rainmaker,” where the plaintiff reads to the jury a letter she received from the insurer ridiculing her for asking for her son’s claim to be reconsidered. 

“Independent medical examination,” or IME, has had common and accepted usage for many years, and is specifically referred to that way in the civil rules in many states. Is an IME really “independent” though? Isn’t the examining doctor really a defense expert witness, not a neutral witness? The pushback for many years from plaintiffs’ attorneys has been to refer to it as a “defense medical examination,” but that suggested phrasing has yet to truly gain traction within the legal community or in the civil rules. Since “accident” is already vulnerable, “IME” could well be next on the chopping block.

What does all of this mean? The real takeaway is that claims professionals usually have a variety of applicable words at their disposal, so consider the following questions: Which word best communicates the point? Which words minimize or maximize details, depending upon the objective? Which words will be best received by the other side? What will look best if the words are ever projected on a monitor in front of a jury?

One of the first trial depositions of a doctor I ever attended involved a plaintiff who slipped at a store. His attorney spoke dramatically about the multiple hematomas he sustained to his lower extremity. The IME doctor was a charming, older British man. In our pre-deposition meeting, he winked at me and said, “You have nothing to worry about, all we have here is a young man with a couple of boo-boos on his bum.” I asked him to repeat that statement to the other attorney before we went on the record, and my client’s last settlement offer was accepted before the doctor could even be sworn in.

Sometimes, it’s all in how you choose your words, so choose them carefully.



Tom Glassman is a shareholder in the Cincinnati office of Bonezzi Switzer Polito & Hupp. He can be reached at tglassman@bsphlaw.com.

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