5/5/2020
The Show Must Go On

The Show Must Go On

How claims and litigation work is getting done in a world dominated by COVID-19

By Eric Gilkey

In case you weren’t aware, there’s a pandemic currently sweeping our nation, and the convulsions caused by COVID-19’s impact on our personal lives have only been rivaled by those felt in our professional ones. No matter if you’re a parent who now moonlights as a teacher between work conference calls, or a former cubicle worker trying to carve out a home office, these two tectonic plates that make up our beings—and which used to maintain a healthy separation—have been rubbing together under immense pressure from all directions over the past couple of months. On paper, the seismograph charts are spiking, and an earthquake of epic proportions seems inevitable beneath our now casually dressed feet.

But it’s not all gloom and doom amidst impending catastrophe, is it? After all, who doesn’t chuckle when John’s robed spouse inadvertently walks into frame, or Carol’s cat decides to treat her keyboard like a runway? “We’re all human after all,” most of us have likely thought to ourselves more than once these days. “And at least it wasn’t my kid screaming to watch ‘Frozen 2’ again….”

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In fact, the we’re-all-in-this-together attitude is strong these days, and if there is one area of insurance accustomed to change, it’s claims. An informal poll of CLM’s membership shows that, while upheaval of the kind we’re experiencing these days is challenging, it’s also being met with an attitude of enthusiasm and innovation by many of the professionals in our ranks. With that said, let’s see how everyone is adjusting, so to speak, to the new normal.

Opportunity Knocks

Over the years, there has been a movement in claims departments to modernize and attract new workers by offering work-from-home options, efforts that Robert Bowers, national claims and customer service leader at Westfield Insurance, is crediting with helping address the needs the industry now faces.

“If the pandemic had hit seven-to-10 years ago, I wonder where we would be as an industry,” he says. “However, our technology, processes, and organizational changes over the past seven years have greatly impacted our ability to transition to a completely remote environment. Additionally, many of the tools we have been implementing support the remote environment, and the COVID-19 pandemic has caused many on our teams to utilize these to a greater extent than ever, positively impacting our ability to service customers and create efficiencies.”

Bowers adds that he’s amazed at his team’s flexibility and ability to adapt in such a short window of time, and he anticipates that many of the emergency changes made on the fly will stick around for the future.

“In a positive way, it will be hard to put the genie back in the bottle with the advances we are utilizing, which includes how we handle mediations, depositions, and other items typically reserved for in-person forums,” he says. “We are greatly improving our remote collaboration capabilities and the technology that goes with that, and I suspect that, while we have been operating for a while under flexible and work-from-home arrangements, this will continue to evolve post-pandemic.”

Rebekah Ratliff, president of Capital City Mediations LLC and president of the Atlanta Chapter of the National African American Insurance Association, agrees with Bowers that some adaptations being implemented now are bound to take root.

“The COVID-19 crisis has shown that alternative dispute resolution can take place virtually anywhere,” she says. “We are seeing convenient opportunities to mediate and arbitrate online via platforms designed specifically for meetings and hearings that require high levels of privacy, and we are starting to be able to measure the benefits of saving time and costs, and safer environments.”

Ratliff says there are some disadvantages to online mediations, though. Maintaining confidentiality and privacy are at the top of the list of challenges, and she says that there is also an emotional element that can sometimes be difficult to establish virtually. But, for her, the benefits outweigh the risks.

“While I prefer to establish trust in person, the emerging realities are shining light on new virtual possibilities that may have existed but were not readily apparent,” she says. “As we continue to learn more about how industries overlap and intersect during and after the pandemic, the demands of the ‘new normal’ will be virtually impossible to ignore, and I think that means online ADR options become more common and accepted.”

The Rise of Zoom

“Common” and “accepted” doesn’t mean that in-person meetings will be a thing of the past. Though no technology was quicker to become part of the virtual mainstream than Zoom—the cloud platform utilized by many involved in the claims process for video and audio conferencing, chat, and webinars—not everyone is willing to forego those face-to-face encounters forever.

“I participated in my first Zoom mediation recently, and I think the biggest challenge was losing out on being able to read the room,” says Nicole Fagan, senior claims specialist for Vela Insurance Services. “As a claims professional, I usually busy myself with taking notes and watching the other side of the table for any non-verbal behavior that is being exhibited. In watching a recent plaintiff look off camera on Zoom, I wondered if he was giving us his full attention—I guess we will never know.”

Still, Fagan says the Zoom mediation was “a fairly seamless process, and I’m interested to see how virtual mediations and depositions may be used in the future in the context of expense management.”

Overall, many respondents note that, while Zoom isn’t perfect, it is making their work lives much more manageable.

“Platforms like Zoom have helped make this transition much easier than it would have been otherwise,” says Meloney Perry, founding partner of Perry Law P.C. in Dallas. “Conference lines are overloaded, so having a reliable system that allows us to speak face-to-face with one another as well as our clients has been a tremendous asset. We can collaborate and discuss upcoming and ongoing projects, but we are also able to maintain that human interaction that is a normal part of working in any office environment.”

When Courts and Construction Sites Close

Despite these novel approaches, in many parts of the insurance industry, working from home and using Zoom just isn’t an option. What happens when the show simply must go on in areas like the construction industry, where building projects cannot exactly be conducted from home?

“While shutting down a project can be difficult, it’s even more challenging to keep one going and maintain a safe working environment,” says Rose Hall, strategic operations manager for risk engineering, North America construction at AXA XL. “However, I’ve seen an incredible range of creativity in this arena. Numerous technology companies, such as Triax, Document Crunch, Smartvid.io, and Proxxi have quickly adapted their solutions to address social distancing concerns and contact tracing on job sites, allowing work to continue in compliance with Centers for Disease Control and Prevention and OSHA guidelines. Some have even offered their solutions for free for a short period, or donated some proceeds to organizations aiding in the fight against COVID-19.”

Opportunities to get creative amidst closed courtrooms are also emerging as litigation grinds to a halt. For instance, Christopher Fusco, managing partner of Callahan Fusco based in New York, has proposed a unique solution for clearing out backlogged litigation. He says states like his should adopt Federal Rule 68 Offer of Judgment (OOJ) to replace the state’s Civil Practice Law and Rules procedure, but with some radical changes.

“I propose that, for the first year of enactment, only a defendant should be able to submit an OOJ on a case,” he says. “If the plaintiff fails to exceed the OOJ, then the defendant would be entitled to recover legal fees from the time of the OOJ (including disbursements), capped at $75,000. This sum would be automatically deducted from any judgment for the plaintiff that did not ‘beat’ the OOJ. Finally, the plaintiff would be entitled to a 30-day extension of any defendant OOJ just for the asking.”

Fusco is under no delusions when it comes to the plaintiffs’ bar response to his idea—he says he expects them to cry foul. But he says clearing a backlog and rapidly settling cases is good not only for the defense, but also for plaintiffs.

“Maybe my proposal isn’t totally fair, but only by a little bit,” he says wryly. “By only allowing defendants to serve OOJs for the first year, the defense bar would have added incentives to properly call the value of the case to give plaintiffs something serious to consider.”

Fusco added that insurers would also see cycle times begin to normalize while reducing time wasted on outrageous OOJs from plaintiffs’ firms.

“We recently received a $10 million OOJ on a case worth substantially less; it was pitched as a ‘conversation starter’ by plaintiff’s counsel,” he says. “In difficult times, we cannot have diversions like this and continue to achieve everyone’s goal of making claimants whole again.”

Faced with a crisis like COVID-19, today’s innovative minds are finding new ways to keep each other safe and productive, proving that necessity is often the mother of invention—all that is needed is a little creative juice to get the gears going.


SIDEBAR

The Art of the Zoom

Many law firms and companies are using Zoom to create virtual hangouts for their fellow employees, hosting lunches and even happy hours of all kinds. Here are a few suggestions for making the most of these casual get-togethers, which can help keep morale high and strengthen human connections.

Make It Fun. Zoom’s virtual background feature allows users to upload and display an image or video as their backgrounds during a meeting. Get creative and show off your technology skills as well as your sense of humor.

Give It a Theme. Spring breaks everywhere were cancelled, and summer vacations seem unlikely. So why not create your own trip to the beach? Encourage attendees to wear Hawaiian shirts and leis as everyone shares stories about their favorite past trips or places of travel. Put up your favorite photo as your background, and give prizes for best dressed.

Keep It Light. Is everyone in your office still obsessed with Netflix’s “Tiger King”? Take this opportunity to host your own after-show discussion during lunch, where you chat about a buzz-worthy television series, movie, or book for 30 minutes.



Eric Gilkey is executive editor of CLM Magazine, a publication of the Claims and Litigation Management (CLM) Alliance. He may be reached at eric.gilkey@TheCLM.org.

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