1. First 48: Increasing Your Subrogation Potential Through Preservation
The first 48 hours following a date of loss are often times the most critical to the subrogation claim. It is the time period when evidence can be preserved or lost, which can be vital to supporting the contested subrogation claim. The subrogation professional should look to four areas of preservation; written and electronic data, scene/key tangible evidence, IoT data, and witness statements.
2. Preservation of Written and Electronic Data: Litigation Holds are Key
In general, the duty to preserve electronically stored information (or any other potentially relevant evidence) attaches when a party reasonably foresees that the information may be relevant to future litigation. The best practice for preserving written and electronic data is to institute a litigation hold. A litigation hold is a process or notice-advising custodians of certain documents and electronically-stored information (ESI) to preserve potentially relevant evidence in anticipation of future litigation. The litigation hold should apply to both the subrogation professional’s pertinent documents and ESI, as well as the adversaries’ data, once notice is given.
When a litigation hold is required, action should be implored immediately. The first step in the litigation hold is to identify the information to be preserved and the custodians of said information. This may involve working with the IT department, legal counsel, and claim-handling professionals. The second step in the process is to notify the custodians of records to inform them that they have documents under a legal obligation to preserve relevant data. The next step is to obtain the acknowledgment and ensure the documents are being held. This can be accomplished by sending reminder notices when appropriate. Lastly, once the need is over, notify the custodians to release the litigation hold.
3. Preservation of Scene/Tangible Evidence: Tips for Photographing the Scene and Evidence Collection
To preserve the scene's appearance and the location of relevant objects to one another, a field adjuster should photograph the scene of the loss. To improve the usefulness of the photographs, the field adjuster should photograph the area from various angles and distances. To give these photographs additional meaning, they should illustrate the scene with a scaled drawing. Further, they should memorialize in writing important impressions, observations, and measurements of the scene that photographs cannot capture or record, including smells, temperature, and humidity. A field adjuster should collect evidence in a careful and precise manner.
Collecting and preserving evidence involves five steps:
- Describing the evidence in detailed notes
- Identifying it accurately and positively
- Packaging it properly for identification, storage, or shipment to the laboratory
- Establishing and maintaining the chain of custody
If possible, evidence should be placed into paper containers, such as bags and envelopes; evidence packaged in plastic bags may be exposed to moisture, hastening deterioration and risking environmental contamination, such as mold. The evidence collector should not package moist evidence until it is thoroughly dry or seal collection bags or envelopes prematurely. Most evidence should be stored at room temperature, unless it is liquid evidence, in which case it should be refrigerated and packaged in a sterile glass or plastic bottle.
To establish proper chain-of-custody of the evidence, claims professionals must:
- Track the evidence from place to place
- Document who retrieved, handled, transported, and received the evidence
- Specify all dates and times
Without a proper chain-of-custody documentation, a court may rule the evidence hopelessly compromised and inadmissible at trial.
4. Understanding Smart Technology and How It Can Improve our Subrogation Claim Investigation
During the recent NASP Spring Conference, a session on the Black Box in the House was presented. The presentation touched on the massive amount of data collection available to investigate a subrogation claim. The key to successful subrogation recovery is often information you can gather during your liability investigation.
The most common smart technology in the home is the smart TV. The amount of data collected by your smart television will greatly depend on the manufacturer, version, and brand. Obviously, smart TVs will gather data regarding viewing habits: which shows and ads are watched, what topics are often searched, and other account credentials. However, additional data can be recovered from the voice activation feature. The microphones and software that are typically listening for instructions could also capture conversations and other sounds within range that can be used to investigate the claim. Even more data can be obtained when the smart TV and other smart devices such as mobile phones, laptops, and home automation gear. This allows individuals to be profiled in detail: geo-location history, web browsing activity, and social media information can be added to TV data.
Smart thermostats track lots of data as well. The basic information is temperature, humidity, ambient light, and motion. This information is used to run the thermostat, but it can also be used to detect or infer occupancy and activity. Once correlated with other data on the same network, including smart speakers and cameras, a smart thermostat can connect data to specific users and their other behaviors - online and off.
The smart speaker is also a great source of data collection for the investigation of the subrogation claim. The wireless, voice-activated controls allow communications while the device is on or off for recording.
The typical smart doorbell gets a user’s name, phone number, email, postal address, and any other information provided. This can include payment information or social media handles if it is linked to such accounts. In addition, each motion the camera detects is stored, including details that were saved every time the camera zoomed in on footage from a mobile device. Ring cameras can detect movement up to 155 degrees horizontally and across distances of up to 25 feet. This means there’s a good chance cameras can be triggered by people walking down the street or pick up conversations of passersby. This data may be stored up to 180 days of video and audio being captured.
A smart bulb is an internet-capable LED light bulb that allows lighting to be customized, scheduled, and controlled remotely. Valuable information can be obtained by securing normal data such as tracking when it is turned on and off. This data can be used to determine when the user is in the house or on vacation.
A smart lock is an electronic and mechanical locking device that opens wirelessly with an authorized user’s authentication. In a smart home, smart locks allow a homeowner to enter the home or provide others access without requiring a traditional key. Instead, the user uses a smartphone or a key fob to wirelessly verify and mechanically unlock the door. Smart locks are an extension of home automation into home security. As one can imagine on top of regulating access, many smart locks log access, providing the means to monitor the use of a given secured door. Some smart locks feature a camera, which provides a picture of those accessing the door and makes for an easily referenced photo log.
A smart security system seamlessly integrates a home security or business security system into everyday life. It connects the security system with the user’s personal devices such as smartphones and wireless technology. As the smart security system includes the security hardware placed on a property such as control panels, door and window sensors, door locks, surveillance cameras, motion sensors, glass break detector, high decibel alarms, and main computer panels.
5. Preservation of Witness Statement
Witness statements taken shortly after the loss are critical. It is the optimum time for a witness to independently recall the loss. There are several types of witnesses to a claim loss; vehicle passengers, family members to those involved, pedestrians, others individuals involved in the loss, people in adjacent buildings, and first responders. A claim professional should always aim to conduct a recorded statement under oath. Moreover, since witnesses are notoriously difficult to track down after the loss, the claims professional should always secure the home and work address, and home and work telephone numbers. When interviewing the witness keep these tips in mind.
Keep an open mind and try to avoid making assumptions. If you start the interview knowing you already know what happened, valuable information may be missed. Ask open-ended questions to ensure to gather as much information as possible. To decrease the likelihood of the witness becoming adversarial or defensive, start with the easy questions first.
Starting with a few softballs questions will put the witness somewhat at ease and give the claims professional the opportunity to ask about seemingly unimportant details that could prove very significant to the investigation. It will also help get a sense of the witness' demeanor and body language when he or she is comfortable and telling the truth. Then, when you get to the tougher questions, you can see whether the witness reacts differently (for example, the witness stops making eye contact, starts fidgeting, or becomes much less certain of the facts). Do not share opinions with witnesses. If the witness suspects, through the statements or the tone of the claims professional questions, that they have already reached a decision, witnesses will be less likely to speak freely. Some witnesses might be afraid of contradicting the claims professional’s version of events. Always look for leads, and ask for other witnesses. At the end of the interview, ask the witness to contact you with new, additional, or edited information. Finally, document the interview with the witness. Always include the date, time, and place of the interview, the name of the witness, and whether anyone else was present.
Our team is constantly monitoring this topic. If you have additional questions or want to learn more about Weltman’s subrogation solutions
, please connect with Ted
at any time.
This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.