I started working on first-party insurance claims in the early 1980s.  I have been collecting data and literature on insurance adjusting, i.e., claims handling, ever since.  A fair amount of it is collected, explicated, and criticized in a couple of my essays from the 1990s, e.g., The Ethical Habitat of Adjusters.[1] (I used to teach ethics at various levels and business ethics of various sorts, first when I taught in the Philosophy Department at Southern Methodist University during the 1970s and 1980s, among others, and later when I taught in an M.B.A. program. I also taught “legal ethics a number of times when I taught in the Law School at the University of Texas and then in a multitude of C.L.E. programs.

There is no really new textbook literature; most of what there was has been cited in The Ethical Habitat, and there isn’t that much new and interesting material.  (There is some newer “how-to” literature, but most of it is common sensical.[2])  Much of the literature on insurance adjusting is like this, including much of the literature on ethics.

One short treatise by a frequent writer on insurance is—if or when anything more than poor—quite uneven, at least for use by lawyers.  For example, the author, who was a claims examiner for many years, tries to get to the idea of “good faith” in adjustment by suggesting that the key idea here is faith.  He then suggests that “there is a closer relationship between insurance and religion than many twenty-first-century insurance practitioners suspect.”[3]  In addition, the faith involved in insurance must be good faith. Therefore, it cannot be “weak, blind, inactive, or bad.

To be good faith must be based on correct theories, study, understanding, the building of relationships, and  positive actions.”[4]

Many of the values, norms, rules, and principles which govern insurance adjusting and which much be involved explicitly or implicitly in adjuster training are what intelligent junior high school students would list if the activity were described to them.  They would include:

fairness,objectivity,listening carefully,truth valuing (telling, accepting, &c.),falsity rejection,empirical evidence gathering, organizing,  and applying,civility,courtesy,reasonable skepticism only,honesty,and so forth.

These are important values, of course, and whoever presents, argues, and advocated them as “Principles of Sound Adjustment” is right.

I will herein be suggesting a more subtle principle and one which is less likely to be formulated by those unfamiliar with various aspects of insurance claims. I  submit that there is at least one fundamental principle that is not usually appreciated or explicitly discussed.  This principle frightens at least some who are involved in insurance matters, even if they acknowledge its truth. In fact, I think I got fired once, some years ago,  as an expert witness by a well-known insurer when I mentioned it in my report.  Idon’t think my report was even ever turned over to opposing counsel or to the court.  Such is the influence of panic and fear. Before I go further I say now that this principle is not outside alltensions, and it is these tensions that make it interesting.  Figuring out how to apply this principle,given that it has some tensions with others, is not always easy.  This is particularly true since opposingprinciples have foundations that are easier to see than their limitations.

This principle is not my invention.  I got it from one of the really great adjusters, I have worked for, labored with, and learned from.  This principle applies to any type of insurance when the issue is the relationship between the insurer and the insured.  It may be entailed by whatever  “special relationship” there may be between an insurer and an insured; it may result in part from the counter-intuitive the complexity of at least some insurance;[5] and it may result from the difficulty many people have in understanding various parts of insurance, e.g., the contract language of at least some policies.

Starting in the early 1980s, I worked with and for Al Mueller (“Mueller”), then a senior boiler and machinery adjuster at Kemper.  That type of insurance had been around for a long time as a separate type of policy.  It has been around virtually since railroads began—in fact, its substance has been around even longer built into ocean marine insurance.  Ships began to have machinery on board long before there were also railroads.  Some ships similarly began to have boilers long before there were very many miles of commercially-used tracks.  (As such, boiler and machinery have not been around as long as fire insurance, of course.)

Anyway, Mueller taught me a principle (i.e., fundamental norm or rule) that is important, if not crucial, for experienced adjusters, claims managers, and expert witnesses in many insurance cases, especially those suits where the policyholder alleges bad faith adjustment investigation or decision-making.  It has not played a—word for word–explicit role in reported cases.  The exact—and suggestive—words of theprinciples are not legally explicit quotes in textbooks, although they are often implied, as we shall see.

Still, the principle is central to the insurance litigation that pertains to adjustment, including all sorts of bad-faith cases, so it should be explicitly explored.  I often recommend to policyholder lawyers that they ask about this principle using exactly my words, and no adjuster so examined has ever denied the principle and all have agreed with it.  If fact, I have never met an adjuster who rejects it as a fundamental principle of sound adjustment.

Mueller was highly experienced and gifted at his job.  He understood machines, boilers, insurance concepts, and accounting.  He was tall, beautifully gray, heavily set, hard-working, and a very bright adjuster.  Mueller was personable, humorous, and loved a great dinner, no to mention a good wine.

He was also a smoker, as well as a chewer, of wonderful cigars, and a superb horseshoe player.  (Indeed, he retired to do precisely and virtually only the latter two of these.)  I have lost track of him, alas.  I have, however, not lost my vivid memories of him, his handling of claims, and what he taught me.  He was an excellent, honorable, heavy-duty, first-party commercial adjuster.  I never saw even the most confident policyholder accountant win out over him, even when they tried hard and hit truths.  Not even highly complex fallacious though clever reasoning swayed him. It didn’t matter whether this reasoning was coming from engineers, impassioned client managers, or forensic accountants.  He believed in truth, sound argument, and justice.  He dealt with insureds and their advocates who were trying to expand claims illegitimately without anger and absent malice, but with logic, firmness, andpatient.

By the time I came into contact with Mueller, I had a considerable amount of education, some of it quite advanced, much of it about values, logic, reasoning, and ethics, not to mention the law.   I did not then know much about what he did, however, whether it was looking at and examining machine disasters, judging the nature and size of physical losses, or thinking about a range of topics:   reasonable costs (e.g., of repair or replacement), reported costs, reviewing business interruption claims, data, andaccounting, allocating losses to various different causes and/or temporal periods, and claims in general.

Fortunately,Mueller helped me learn lots and lots quickly.  Much of what he taught me was and is quite general across various first-party coverages.  I have been doing some of what he taught me ever since, and I don’t think I have ever deviated (at least—intellectually) from one of his major and fundamental principles of sound (and reasonable) adjusting he taught me.  By the way, I tell this story at such lengthas a coaching device.  Lawyers have much to learn from certain types of highly experienced adjusters, and they can be fun people.

Incidentally, the Mueller Principle or Mueller Maxim extends well beyond first-party coverage.  There is no reason to think that it does not apply or liability insurance.

I am inclined to think that the duty to defend is first-party coverage anyway, and that which much be investigated, to wit:  the live pleading, is simple enough to investigate—at least as a general rule. I also don’t see any reason not to apply this Principle to duty to indemnity.

The First Principle of Adjustment

The Mueller Maxim is this:  Look for coverage!  Perhaps this should be called “the Central  First Principle” (“CFP”) of sound insurance adjustment.  My then mentor, Mueller, described it as the fundamental ethical principlegoverning all first-party adjusterconduct in processing claims.  Theprinciple applies, he said quite rightly, no matter what kind of person orentity the insured was.  It didn’tmatter, according to Mueller, whether the insured was likable or even honest, althoughhonesty might have something to do with some features of adjustment, it wasirrelevant to a right to appropriate payment if there was a covered loss.  Even the houses of gamblers, protitutes, swindlers,and con-people can sustain covered hail (or similar) damage and/or non-arsoncaused fires.   Some commercialbuildings—say, whorehouses—may be a different matter, especially if thebusiness activity conducted there was not described with appropriate accuracyin the application.  This is not aproblem of adjustment exactly, although an adjuster may be the first to becomeaware of the problem.)  It does notmatter, said Mueller, what the truthfully preserved covered claim was for orhow well it was presented.Fraudulentclaims are a wholly different matter, of course.   IfScott Peterson’s house burned from lightening, even he would have a right tocoverage.  If he burned down the house inorder to kill his wife, thee probably is no coverage, since there is noaccident and there is a violation of the “Principle of Fortuity.”Since 1985, or so, I have repeatedthis exact principle to many adjusters to determine whether they agree with, orsubscribe to, it.  Not one has ever rejectedit or expressly disagreed with it.  Manyhave stated that they learned the same principle in pretty much the same words fromwhomever it was who taught them.  Some ofthem have observed that CFP is a widely embraced principle.  None has ever rejected it.Oneof the other adjusters who mentored me, John Moyer (“Moyer”), also at  Kemper for many years, but now an expertwitness in insurance matters, also subscribed to the Look for coverage! Principle for many years, taught it during thatlengthy interval , and still embraces it.[6]  Moyer is much shorter and more trim thanMueller.  He is not gray and he, too, hasalways been a heavy smoker.Interestingly, Moyer was a boxer in his youth but had been an insuranceclaims man for many years.  For one ofthese reasons, Moyer seemed to love, at least some, lawsuits.  They often involve a kind of “sparring,”alas.  His experience as an adjuster wasmuch more diversified than Mueller’s, and he held more senior positions.  Moyer seemed to enjoy squared-off debating morethan Mueller, but he was also fair, but he subscribed to CFP with conviction.Moyerregarded this proposition as thoroughly true, even though Moyer had skepticaland even cynical streaks.  Maybe boilerand machinery claims are invariably more honest and less expansive than otherkinds of claims.  Moyer knew that hismoderate skepticism was something he had to work with, solve, and overcome (atleast sometimes, when he obeyed CFP.  Healso know that if his cynicism ran any deeper and it did—or where less easy toset aside and/or defeat—embracing CFP as a practical matter would be verydifficult.  One of the attitudes abouthuman-kind which makes being an adjuster extremely difficulty is auniversalistic, strong belief that most everybody trends toward dishonesty to aconsiderable extent whenever it well may be to their advantage.[7]Accordingto Moyer, CFP is a widespread fundamental directive across the entire insuranceindustry, including at least the duty-to-defend component of third-partycoverage.  After all, many responsibleadjusters read plaintiffs’ petitions (or, complaints) broadly to see if thereis a duty to defend.  Moyer didn’t loveunjust lawsuits.  He seemed to love exactlythree types of suits:  (1) those which defendedattacks on policyholders; (2) attacks upon insurers that had behaved justly;(3) defenses of insurers against immoral screw-jobs conducted by insureds.  He did not love defending insurers thatdenied complex claims based upon subtle, tricky distinctions.  (Moyer used a confidential—indeed,secret—early first principle:  Insurance and sophistical subtlety in theclaims process do not mix well.(Moyer would never tell me whether this principle covered both insurersand insureds.[8]  I have also wondered if the “Moyer Principle”should apply to the interpretation of complex, specialized high-pricedcommercial policies, especially credit insurance and intellectual propertyinsurance.)Moyeralso told me that he systematically and repeatedly taught CFP in trainingcourses.  He said, however, that theprinciple was and is, to some degree, also unintentionally undermined in many trainingsessions.  According to him, this is  because so much attention was, is, and must bedevoted to exclusions.  Moyer thoughtthat the huge amount of time and attention spent upon exclusions tends to focusthe attitudes of new adjusters on getting out of coverage, rather than onfinding it.  Intellectually, attentionand dominant attitude are not always trained together, he said.  The amount of training-time for exclusions,of course, has to do with the number of words involved in applicable exclusionarylists, as opposed to the usually quite short positive policy sections settingforth coverage.   “Insuring Agreements” come first, but theytend to be short and simple-looking.  Thespecificity versus generality of the two substantive sections is oftenforgotten.Furthermore,complex definitions set forth in policies often play larger roles inunderstanding and construing exclusions than they play in dealing with coverageagreement sections.  Some definitions aresimple and short.  Often some of the mostimportant of these definitions appear first in the Insuring Agreements.  Often definitions are long and morecomplex.  Some of these are to be foundin the Exclusions Section, as opposed to the general definition section.  (Of course, such is not always true.  In some third-party liability policies, forexample, there are relatively simple definitions in the insuring agreement,e.g., “bodily injury” and “property damage” and the more complex definitions onlycame up elsewhere, e.g., “products-completed operations hazard(s).”)Curiously, some definitions are both simple inwording and complex in meaning and function.Consider “occurrence.”  It issimple so long as “accident” is the only definition that matters.  It is complex if the temporality of theaccident matters.)  In contrast, manyDirectors and Officers have complex definitions incorporated into the InsuringAgreement, e.g., “loss,” “wrongful act,” and “claim.”As a lawyer, I have taken thedepositions of numerous adjusters over the years and I have prepared witnessesfor and/or defended more than a few such adjuster depositions, as well.  (I am counting adjuster supervisors and“Claims Department” executives as adjusters.That is—after all—usually how and where they started.[9])  Both series of events have happened in avariety of contexts, for example, bad faith cases, commercial subrogation cases,lost policy suits and disputes involving various types of policyholders with adiversity of coverage problems.  (Ofcourse, adjusters are not usually witnesses in premium suits.)  Not one of this adjuster-witness has everdenied the significance or wide applicability of CFP, when I have asked aboutit in a deposition, while preparing testimony, or at trial.  Virtually all of them have said that theysubscribed to it, that their (previous) insurer-employers did so, and that the currentinsurance company employing them did so as well.  From time to time adjusters have said thatthey don’t really fully understand CFP, but every one of them who subscribes toand/or is familiar with CFP has acknowledged over the years that it has been a—if not the—fundamentalnorm governing sound adjusting.  Many havesaid that the proposition or the idea was foundation for, integral to, or atleast, involved in their training.  Significantly,first principles are seldom fully understood, even by the profoundly learned orwise.[10]  Occasionally, adjusters have worded CFPsomewhat differently.   One substituted, Search for Coverage; another said, Look around for what else might be there; a third wondered if Pay expansive and creative attention wasthe same.Sometimes, as I already indicated, Isuggest to other lawyers representing policyholders that they ask adjustersappearing as witnesses about the maxim Lookfor coverage!   This often happenswhen I am working as an expert witness for a policyholder – a less-and-less infrequentoccurrence as the years go by.  Many havefollowed my suggestion in depositions.  Noneof these lawyers has ever told me that an adjuster rejected CFP.   Indeed, they consistently say quite theopposite.  I often ask these lawyersabout what the adjuster-witness says, and frequently I read their depositions.  The answer adjusters give is alwaysthe same:  CFP—or its equivalent—is true,helpful, endorsed, taught in training classes, fundamental and frequentlyrecognized.   It is usually regarded as a fundamental  principle of adjustment ethics or an importantmoral principle of the profession.  Ihave never hear of an adjuster who rejected or denied it.(Bythe way, a frequently tell lawyers representing insurers to educate theiradjusters to this principle.  Thisknowledge helps avoid unnecessary rhetorical difficulties.  In addition, if the claims process is thoughtthrough from this point of view, and conceptualized in terms of it, problemscan be avoided.)Obviously, it is important to keepin mind that the principle Lookfor coverage! does not entail, imply, or even suggest,  the imperative, Find coverage! Looking for something and findingit are not the same.  If something doesnot exist, it cannot be found, even if someone looks hard for it.  Similarly, CFP does not entail orimply, though some think it suggests, the principle Use all your efforts and energy to find coverage and doabsolutely nothing else!  Furthermore,CFP does not imply or suggest this principle:Always conduct a totally full and absolutelycomplete investigation.   Thisprinciple means that a full and complete investigation could be accomplishedonly if everything was looked at, everything was examined, and no stone (whetherfactual, linguistic, or legalistic) at all was left unturned.  Nothing short of all these would constitute afull or complete adjustment.   Ifthe first inquiry of a CFP establishes without significant doubt, for example,that there is no coverage of any kind, that no actionable act or event tookplace, that no policy existed at any relevant time, or that no injury and/ordamages have been sustained, it is not necessary to look further or elsewhere, tolook more deeply, or to examine something else which might be claimed to be relevant.  Many policyholder lawyers adopt the four“principles” beyond CFP reviewed in this paragraph, at least for rhetoricalpurposes.  They sound good.  Lawyers for insurers should carefullyconsider demolishing these suggestions, however, through logic, law, and expertwitnesses.             Pragmatism,as well as logic, applies to the real world.The fact that a sentence soundsgood does not make it true.  Looking forsomething—even a complex and/or abstract something—does not imply lookingforever, looking absolutely everywhere, or paying out all assets—whetheravailable or not—to finance the search. The principle Look for coverage! may be a nearly absolute imperative, butit is not  completely absolute,universalistic (in the sense that there are no other significant principles),  or infinite in terms of width, depth, ordiversity.  At the same time, it is notshallow, narrow, or simplistic.  It istied to insurance policies and none of them have the last threecharacteristics.  The principle Look for coverage!, even with theexclamation point, is not the same as the principle Find coverage! which is the “asserted axiom” of at least somepolicyholder plaintiff’s coverage lawyers.Thus,CFP probably does, at least empirically, nearly entail the following complexprinciple, however:  Use reasonable and actually appropriate knowledge, intelligence,imagination, and energy in dealing with a claimed loss—whether finding it oranalyzing it—and thereby find coverage within the terms of an existing andapplicable insurance contract.  Atthe least CFP suggests and supports this principle in a powerful way in thepractical context of the real world.Genuinely, finding coverage entails that the terms of the policycontrol.  Finding coverage presupposes the existence of a contract.  Findingcoverage, i.e., finding something actually covered by the contract, is not thesame as finding some loss or other.Finding coverage does not require distorting the meaning of thepolicy.  Something has to exist to befound.  Inventing or imagining somethingand finding something which already exists are not the same.  That actually would distort coverage andundermine the idea of insurance itself.  Imagininga unicorn does not create a unicorn, any more than imaging long-gone dinosaursbring any back to life.  RememberingNapoleon, Edmund Burke, or one’s long-gone grandparents, does not bring any ofthem back to life or actualize them currently in any—except a subjective—way. Thefunction of imagination in insurance adjustment is the same as it is in scienceand the law.  It is not a foundation forevidence or proof; it is a foundation for hypothesis, as it functioned in thefirst—March 15, 2007–episode of the new TV detective show RAINES.  Fundamentally, insurance adjustment is anempirical discipline.Alas,this just formulated principle is too long, too wordy, and too complex to beworkable as a slogan, maxim, or stimulating ideal in teaching contexts or trials.  Some expert witnesses will say they don’treally understand it.  Perhaps somedon’t.  This observation is especiallythe first time someone hears it, even if that someone is experienced and/orknowledgeable.  Some adjusters will saythe same thing.  Simple wordings can beimportant.  It can guide; it can inspire;and it can be grasped quickly. Of course, it can also be misleading.Theprinciple Look for coverage! is ofenormous social and economic significance in the context of a capitalisticeconomy.  One of the fundamentalprinciples for all businesses in anything resembling a capitalist orderis:  Maximizelegal profits!   Any insurancecompany which follows this principle will have a pervasive and powerful temptationto minimize (or, at least, reduce) claim-based payments.  Insurance companies have money.  They received it mostly frompolicyholders.  Insurers cannot boldly,timely, and simply maximize profits, at least from an absolute point of view,if they pay money out on claims.  Forthis reason, one temptation that every insurance company faces is to find aslittle coverage as possible (or, as little as they can get away with).[11]  On the other hand, the temptation to maximizeprofits, while apparently or superficially dictated by economic principles, is:(i) inconsistent with the fundamental purpose of insurance; (ii) inconsistent(therefore) with the social purpose of genuine and justified insurance companies;(iii) will lead to the long-term death of insuring companies; (iv) will triggernegative governmental regulatory reactions; (v) will breed lawsuits; andhistorically one of the probably foundations of both common law and statutorybad faith law.Ofcourse, lawsuits cost enormous sums of money.Legal services in business controversies are especially expensive, not thatthey are cheap anywhere.  Further,lawsuits can be lost.  When lost forgood, e.g., after big-time discovery, negotiations, trial, and appeal,  they can even more expensive for insurers thanordinary laws suits.  This is especiallytrue, of course, because of the spectre ofstatutory and/or common law bad faith, in addition to coverage andperhaps two expensive sets of legal fees.Thee is also, of course, negative  publicity,  and even now there are class-actions.  They both  raise the overall price of coverage basedlitigation even further.Any insurance company following theprinciple, Avoid admitting coverage andpaying claims in their correct amount whenever possible in order to maximize profits!is profoundly immoral, as well as sometimes  illegal, since its conduct is anti-contractual,conceptually inconsistent with the very idea of insurance, deeply unethical, andso forth.  Consequently, insurancecompanies need to train those in charge of examining and adjusting claims toplay a role which is fundamentally inconsistent with what is, at least, astrong business-based temptation.Economictheory embraces the legitimacy of self-interest.  Of course, given that insurers should receiveonly reasonable premiums and pay all legitimate claims fairly, they should—giventhese two limits and within their context—appropriately maximize profits.  There is no inconsistency between the purposeof an insurance company and the correct payment of genuine claims.  However, there is an inconsistency between acompany successfully taking all of its income and maximizing profits upon thereceipt of those funds and the paying claims at the lowest possible level itcan get away with.  Hence, if for noother reason, CFP needs to be a central part of the dominant mental processesof every adjuster, and it is one of the very foundations of adjustment moralityand ethics.  It is not the only one, evenif it is fundamental in practical contexts, given its actual meaning, i.e.,given the actual and literal meaning of its words.Does CFP Create Fiduciary Duties?Thesignificance in centrality of the principle  Look forcoverage! does not entail or imply that an insurer is the fiduciaryof its claim-making insureds.  Aninsurer’s obligation to look hard at relevant facts, and even its obligation tolook expansively at both language and facts to determine whether there iscoverage, does not create fiduciary duties.The proposition that Insurers are not (usually) the fiduciaries of theirinsureds is not entirely undisputed.Nevertheless, it is probably true.Truth or falsity here again (probably) does not matter from the point ofview of sound adjustment, although it matters from the point of view oflitigation rhetoric.  It is certainlytrue in many jurisdictions for ordinary claims.Onecharacteristic of fiduciary duties is that the fiduciary must treat as superiorto its own the interests of the person or entity for which it is afiduciary.  There is nothing about CFPwhich entails any such tilting differentiation in favor of an insured.  Sometimes, however, insurers are said to havespecial relationships with theirinsureds.  Usually, this means that the insurermust treat the interest of the insured as equal to its own, though sometimescourts erroneously assimilate the specialrelationship to the fiduciary relationship.When viewed correctly, specialrelationship balancing is different from simple third-party relationshipsbetween business and customers, and it is not the same as a fiduciaryduty.Inaddition to the foregoing, fiduciaries are frequently said to have thefollowing duties, beside the one already mentioned.  Probably, non-fiduciaries have at leastroughly the same level of high-duties.Attorneys, for example, are said to owe their clients the highest fiduciary duties.  Obviously, if there were not differentlevels, attorneys could not have fiduciary duties higher than those of someothers.  In any case, here are some ofthe fiduciary duties:  good faith,trustworthiness, careful observation of the relationship, scrupulous inadministering the relationship, complete and total honesty, very substantialopenness, very substantial candor, no deception, no concealment, full and fairdisclosure of facts, complete and total maintenance of client confidences (afiduciary duty, at least attorneys have, but also which some others have), andso forth.  It seems quite clear that ifan entity lacks any of these duties at any level, then it cannot—in anycomplete sense—really be a fiduciary.Atthe same time, it is quite clear that insurers do not always, and under allcircumstances, owe insureds candor and openness.  Thus, for example, if the policyholder-claimantis lying to an insurer, the insurer might wish to keep its skepticism, itscontrary evidence, what other witnesses have said, and so forth, to itselfuntil its review of the claim is elaborated.Thus, a full and complete disclosure is not at all times required.  At the same time, it is perfectly true thatmost insurers, most of the time, owe first-party policyholder-claimants somegood faith, although—perhaps not—uberimafides, absolutely the highest goodfaith lawyers owe clients. (Obviously, there is much more to be said, but thefundamentals of the case are against fiduciary status is established.Interestingly,in a book I have already criticized, Ken Brownlee, who frequently writes onadjustment, correctly observes that insureds must trust their insurancecompanies.[12]  Here is what he writes:  “The insured must place considerable trust inthe insurer to be there when a covered loss occurs.  In exchange for nothing more than a promiseand a stack of printed paper from an insurer, the policyholder may pay hundredsor thousands of dollars.  That is anexpression of faith on the part of the policyholder.”  Indeed, if Brownlee is right about thenecessary role of faith, in a capitalist economy, where each business isexpected to maximize its profits, this trust based on the money and history maybe thin.  Perhaps that’s why there is somuch public skepticism about insurers in ordinary, routine discourse.  Then again, Brownlee’s faith may be a complexnotion involving faith in several different institutions, including the justicesystem.Some Implications of CFPCFP has at least three majorimplications.  Each of them apply underall circumstances.  The first two ofthese implications are extensions of CFP, or are very much likeextensions.  The third one is aqualification and may constitute a kind of limitation.  Looking for truth and accuracy sometimesrequires moving over the same grounds more than once, though not with mererepetition.LookingBeyond.  First, when an adjusterlooks for coverage, the adjuster is looking beyond the language of the proof ofloss or other report of the claim.  If,for example, the owner of a commercial building reports that it has sustainedstorm damage to its roof as the result of a huge rainstorm—perhaps a storm withhail, lightning, wind, and so forth—the adjuster needs to look beyond theroof.  This much has already beendiscussed.  The point grows larger,however.  The CFP-bound adjuster needs togo into the building and see what happened below the roof.  If the roof is damaged, some of the rest ofthe building may have also experienced some damage from the storm as well.  If the roof of the building is covered forstorm damage, it’s probably covered for damage inside the building as well.  External walls may also needexamination.  Similarly, there may bedamage under the building or there may be two or more covered structures on theinsured property.  CFP may include themall.  Then again, maybe not!  As we shall see, this implication haslimits.Adjusters should not restrict theirlooking to the policyholder’s chosen language in either the proof of loss orthe earlier report(s).  Mostpolicyholders are not insurance professionals.Most policyholders are trying to get their claim to the insurer quickly sothat they can obtain a coverage decision, and then begin repairs orreplacements.  Thus, the principle Look for coverage! is designed to helpinsurers and their adjusters be helpfulto the insureds.  Insurance is to protectinsureds.  The “precise” wording of theclaim, and the common understanding of contract language, it does not requirethat any of these be ignored, forgotten, disproved, or contradicted.   Acts of lookingbeyond obvious facts are always appropriate and usually required.  CFP is the key foundation to this idea.Onealso wonders whether an insurer has a duty to inform an insured about thepresence of extensions of the reported loss or of different losses which havenot (yet) been reported.  Does an insurerhave a duty to say to an insured, “You have made one claim, but now that I lookat your building, it seems to me that you may have a second claim.  It may be even more important that the oneyou have reported.  Look up there.  Feel this.Sniff that.”  If there is a duty,what sort of duty is it?  Is it a legalduty or simply a moral duty?  Would itmake any difference if the insurer were a fiduciary of the insured for somereason in the contexts of adjustment?ActuallyLook.  Second, as long as an adjusteris at a building looking to see whether there is coverage and if so how muchmoney needs to be paid to cover damages, the adjuster needs to look beneath hisown memory of what the policy says.Often, adjusters actually need to take an actual look at actual policylanguage.  (There is much to be said for actuality.)  Often, the adjuster does not need to readdeeply into the language of the policy.Often, the language is clear on its face.  Sometimes, however, comprehensive,thoughtful, and even deep-readings are necessary.  Indeed, looking for coverage in complex casesoften requires that policies be studied.  If there is a pattern of omission inadjustment processes, this is it.Perhaps this is why so many insurers are hiring frustrated, tired, ordisgusted lawyers to come in-house – either as adjusters themselves, or aseasily reachable, quick thinking, highly knowledgeable coverage counsel, orboth.  I once saw a whole series oflawsuits arise involving plumbing losses in houses because a very good and veryexperienced adjuster thought he knew what a standardized policy said, but waswrong.  This particular adjuster was soexperienced, so honest, and was (or appeared to be) saving the insurer so muchmoney (at least from temporary appearance), that the supervising examiner neverreally checked the adjuster’s work.Unfortunately, the adjuster had misread (or, misremembered) thepolicy.   Looking for coverage requiresthat the policy be grasped, and often this imperative requires that the policy actuallybe looked at in an adjustment process.As already indicated, although theactual language of an insurance contract ultimately controls insurer liability,the same is not true for insurance claims.Policyholders do not always understand what they have said.  They do not always understand what could orshould be said under various circumstances.Adjusters should not even regard themselves as governed by recordedstatements.  Those doing claims need tolook beyond the language actuallyused by the policyholder.  They need tolook deeply into language used in theclaim, the needs of coverage, the needs of the insured resulting from injury,and the spirit of the claim, as opposed to its literal formulation.  In following CFP, adjusters need to encouragethe policyholder to say more; the need to inquire about what else couldreasonably be said; the need to try and get the whole story, even if the wholefavors the policyholder when a mere part (already given) does not.Moreover, the language of policiesis not always clear, even though this linguistic fact may not be known inadvance.  When policy language is lessthan clear, the adjuster needs to look deeply into the language of the policyand think about what it might reasonably be taken to mean under the actualcircumstances of the claim.  This isproof of required looking.  Adjustersshould not simply automatically accept the way the language has beeninterpreted in the past by insurers, even standardly.  Linguistic habits of the past do not alwaysdetermine actual meaning, especially in new circumstances.  This is especially true with words like,“occurrence” and “accident,” which are extremely important in liabilitypolicies.  They have already been discussedbriefly.  The word “pollution” may alsohave the same problems.LookFor.  Third, should an adjusterlooking for coverage look around damaged premises, for example, to see whetherthere are covered injuries and damages which haven’t been claimed?  Parts of this have already been discussed.  Part of the answer depends on the type ofdamages involved, as well as the types of claims.  If there are multiple damages, then, even ifthey have not been formulated and even if the explicit claim which has beenmade is illegitimate and not covered, arguably, the adjuster should, at least, considercarefully informing the policyholder of existing claims and should probably doso.  Such is what taking care (or caretaking) expansively is all about. Insurance isan industry—it is a business—the purpose of which (at least among others) is toprotect some people, i.e., policyholders, from certain types of losses.Insurers are designed to reduce a certain ranges of risks—risks of loss–facingpolicyholders.  Insurance companies aredesigned to provide care to policyholders under some circumstances.CFP has several dimensions:  looking at already relevant facts, looking atand through claim and contract language, looking for at least some otherpossibly relevant facts, looking for policies or evidence thereof, and possiblylooking for other, perhaps, covered injuries and damages.  In this context, adjusters need to be mindfulof what may constitute a claim.  Itshould therefore be remembered that even the term “claim” is ambiguous.  In the context of adjustment, the insurancegenerally, the term has several meanings.(1)Insureds make claims for first-partyinsurance coverage and payment.  Theseare not claims against the insurancecompany.  They are part of thecontract.  Insurance policies providecoverage for losses.  Letting insurersknow about the existence, nature, and size of a loss, makes a claim.  Claims are, at least in the abstract,contemplated as a genuine part of the insurer-insured relationship from thebeginning.  (Completely fraudulent orfraudulently expanded claims are claims againstthe insurer, since they are not genuine.This is certainly how the insurer will feel about them.[13])(2) Inthe context of liability insurance, claims may be made against insureds.  Theinsured may turn them over to the insurance company.  As claims against insureds develop,sometimes, those claims are made against insureds.  It also happens before suits are filed.  Auto liability claims are often likethis.  It sometimes happens in filingsuits and in amendments thereto.  Thissometimes happens in the context of litigation, for example, when an insurer isdefending under a reservation of rights, the underlying claim against theinsured is settled, and then there is an assignment from the insured to thetort plaintiff.  All over the country,courts seem to be getting more flexible about tort plaintiffs suing bothinsured defendants and liability insurers in the same lawsuit.(3)Claims are sometimes made by insureds againstinsurers.  This happens when insuredsbelieve that insurers are not adjusting claims properly, or that they everrefused coverage when they should have admitted.  In other words, sometimes, this means thatthe insured is pressing for a type of coverage or an amount of coverage whichthe insurer has tried to deny on the basis of good reasoning.  In the alternative, the claim can be againstthe insurance company because the insured is accusing the insurer of beingirrational, dishonest, or outside the purview of good faith.  A claim against an insured can become a claimagainst a liability insurer in various ways.Sometimes in the liability context, a claim against the insurer willcome from the person or entity making the original claim against theinsured.  Sometimes it will come from theinsurer himself. CFP is relevant to claims in all three senses of the word“claim” in various and different ways.CFP entails that adjusters should betrying to find some coveragefollowing a claim.  The entailment exitsin liability insurance contexts.  Asalready indicated, CFP  does not implythat they should actually find, as it were, coverage, if it does notexist.  This is not finding coverage; it is inventingcoverage.  It is not the case that goodadjusters shall find some coverage inor close to it in every claim.  CFPimplies that insurers and their adjusters should be discerning in observationalpowers expansive in thinking and interpretation, but it does not imply that theadjusters should set out to undermine the language of the insurance contract orthe  insurer.  Looking for coverage does not imply creatingit by (even sympathetic and/or empathetic) fictionalization.  Adjusters are seldom novelists or writers ofother kinds of fiction.  Instead, CFPimplies (although it is not implied by) the propositions that (1) adjustersshould be appropriately knowledgeable; (2)adjusters should be objective; (3) adjusters should not be biased; (4)adjusters should be fair; and (5) adjusters should be impartial.  Adjusters should not restrict themselves towhat the insured says or has said.  Inthe end, they should restrict themselves and the insured to the actual factsfound, after an effort is made to observe all relevant and potentially relevantand observable facts.  Cupboards need tobe opened.  Refrigerators need to bepulled away from the way.  Attics andbasements need to be inspected.Sometimes applyingCFP has to do with policy language.Sometimes it has to do with facts.Analyses of facts are not always driven by CFP.  Sometimes, they are driven by what cannot befound.  This parallel has already beendiscussed.  Here is an excellent exampleof one relationship between looking for coverage and facts, which have not beendiscussed yet.  A man owned two houses.  One of them he lived in most of the time in alarge city.  The other one was a vacationcottage 150 miles away.  The vacationcottage was next to the lake.  It wasused for fishing on the weekends. It was used in the summer.  It was a log cabin (sort of), obviously, mademostly out of wood.  The country cottagewas an old building.  It had been paintedmany times.Both buildingswere insured.  The insured was in severefinancial trouble and needed a cash infusion.For a month or so, he announced to everyone he knew that he was going totake a week off from work and “fix-up” the country cottage.  The first thing he was going to do, he said,was clear the layers of paint off the floor, sand it down, and restore thebeauty.One weekend, theinsured went to his cottage, and moved all of the furniture in the cottage outinto the yard.  He then poured chemicalson the floor, ostensibly so that he could begin clearing out the many layers ofpaint.  The insured was a smoker.  After pouring gallon upon gallon of the paintthinner on the floor, he went outside to smoke a cigarette.  He stood with his back to the house.  He had brought a box of fireplace matchesoutside with him.  He struck one to lighthis cigarette, and tossed it over his shoulder.The match landed on the outside porch, which was itself wood, heavilypainted, and thoroughly covered with paint thinner.  The cottage burned to the ground almostimmediately.In the context ofhis claim, the insured told the story as recounted.  He made no secret of the fact that he was infinancial trouble and needed money.Naturally, it occurred to the insurance adjuster that the insured mayhave burned down his own cottage.  Theadjuster asked the insured bluntly if that was what he had done.  The insured hesitated; smiled slightly, andthere was a dance of achievement in his eyes.Very quickly, however, the insured unequivocally denied that he haddeliberately set fire to his house.For years, theadjuster was absolutely convinced that was precisely what the insured haddone.  At the same time, the claim waspromptly paid.  There is no way in theworld arson could be proved.  There wasno way in the world that a claim should be denied and taken to court.(Thingscould have been at least somewhat, different if the insured had used the box ofmatches to light the cigarette of a genuine smoker, other than himself, andthen flipped the match over his shoulder.Things might have been different if the insured had become a smoker forthe first time only recently and, therefore, did not have at least a long on-offsmoking history.  It would make some differenceif the insured had a history of having destroyed things he owned or burned themand so forth.  The insurer’sinvestigation, however, indicated none of these as possibilities.)Some Other Basic Principles ofAdjustmentThere are at least three other importantfundamental principles of adjustment.One such fundamental principle is this:Insurers are not either legally ormorally obligated to pay claims which are definitely not covered in applicableinsurance contracts.  Perhaps thisshould be called the “Second First Principle” (“SFP”) of insurance adjustment  Thus, insurers are not obligated to pay claimswhich are demonstrably, provably, or establishably fraudulent, claims which arebased upon provably false propositions, 100% of claims which are overstated forwhatever reason, claims which are actually outside coverage, and so forth.  (Of course a provably false proposition and a probably false one are quite different.  A proposition which is probably falsemay—eventually—be “proved” to be true.  The weight of evidence can support aproposition which turns out to be false, but is never known to be false.  Thus, a jury may come to a false conclusion,because a proposition was “proved” to it to be true, even though it isn’t andnever was.)SFP is and should be deployed andutilized in defending bad-faith litigation.Usually, if an insurer does not have coverage, it will not owe for badfaith, even if it reasoned badly, so long as sound reasoning trains have notbeen waived, or something of the sort.  Alas,SFP, too, involves complexity.  Theseinclude ambiguity, the relationship between insuring agreements and exclusions;the nature of conditions; and so forth.Theinsurance contract is important and determinate, at least with respect to itsclear statements and fairly establishable facts.  So are facts which are eventually proven tobe true.   From a legal point of view,facts which are felt to be true, guessed to be true, or merely intuited to be true, are nothing morethan something like wishful thinkingor hopes for proof.  In any case, at theend, i.e., at the point of deciding coverage, feelings, guesses, invitations,wishes, and hopes are irrelevant and immaterial to correct coveragedecisions.  (Sometimes, of course, wishfulthinking, along the way to a decision, and others of these key ideas, can playa useful role, particularly where it takes time to locate, surface, and/orscrape-off the muck concealing the surfaces of previously hidden facts.)CFPand SFP are perfectly consistent.  Giventhe nature of contracts, insurers do not have obligations to pay claims thatare correctly determined to be outside coverage, even if they have anobligation to try to look for coverage, once the claim is made.     Nevertheless, while consistent, CFP and SFP functiondifferently.  CFP tells adjusters how toreceive claims, how to investigate, what epistemic spirit to have, how to thinkabout claims, and how to treat them.More than anything else, CFP is practical normative principle.  Inherent in CFP are certain other ideas:objectivity, appropriate thoroughness, energy and willfulness when it comes toinvestigation and thought, and a willingness to look beyond the actually statedthemes and details of a claim, as well as the actual wording of a claim.  Not all insureds think clearly or writewell.  The same is true of publicadjusters and others—e.g., lawyers—representing or assisting insureds in makingclaims.  Some of these ideas will bediscussed again later.  SFP is a legalisticand linguistic principle.  It even has anempirical component.  It is not a norm;however, directing what ought to be done in the process of adjustment.  CFP is.SFP is instead about how the social world actually is.  It is not a commandment.  Some might call SFP a meta-principle.  In other words, SFP is about the nature of otherprinciples, such as CFP, how they actually work, perhaps how they should work,how they fit together, and so forth.The situation is different; ofcourse, if facts relevant to the claim are obscure or the insurance contract isambiguous.  If policy language is, byitself, ambiguous, at least on the surface, and it is not clarifiable by genuineand provable reference to technical standard uses, e.g., engineering, medical,trade usages, &c., or it is not disambiguate-able by references tosignificant facts, e.g.., the actual intentions of the parties at the time ofcontract formation, under the law, the meaning of the language will (or should)be resolved in favor of coverage or to the benefit of the policyholder ifcoverage is already established.  Theamount of lawyerly and academic prose on this rule is, at least, enormous, andperhaps immense.  (Assuming those wordsexpress different ideas.)Whatcounts as ambiguity is not wellestablished.  Here is a pragmaticlist:   vagueness (consider the word “nearby”), the sandy(or, fuzzy) edges of some general terms (consider “maxim”), internal complexity(“corporate structure”), obscurity (“accident”), imprecise terms (“accepted,”as in “accepted principles”), oddity (“personal injury”), queer dictionaryentries (“sudden”), huge and changing ranges of reference (“pollutant”), ill-understoodterms (“willful”) and/or terms defined one way on one page and used differentlyon another, all may, in some circumstances—though not all—count as ambiguousterms.   Then again, not every general term with“fuzzy” edges should be counted as ambiguous.Consider, for example, “balding,” “tall,” “short,” “heavy, (even) “fat,”“owned,” “finished,”  “work,” and manyothers may not be so adjudged, even if they are not words of perfect precision.[14]Paradigmatic,common usage ambiguity is quite different.The term “ambiguity” of law means that the term has quite differentmeanings.  Consider, “bank,” “bank” and“bank.”   Obviously, some banks are financialinstitutions; some banks are slopes next to rivers; and some banks are anglesat which airplanes turn. Also, consider the word “appearance.”   In a deposition, the following question andanswer occurred:Q.Is your appearance here today determined by thesubpoena served upon you?

A.No.  I’m dressedthe way I always dress on weekdays.

Obviously, theword “appearance” is ambiguous.Theapplicability of general terms, even many with fuzzy edges should mostly bedetermined by reference to material empirical facts, not by reference tomeaning.    Interestingly, the term “ambiguous” is itselfambiguous.  General terms with clear centers and fuzzyedges are not usually counted as ambiguous, even if they are counted as vague,to one degree or another.  In manycontexts, a word is ambiguous only ifit has quite different linguistic meanings.This fact is often ignored in lawyer arguments about contractconstruction.Someof the instances are central to insurance disputes.  Consider, for example, the use of the word“regular” in some standard auto insurance policies.  In some policies, certain autos which are“regularly used” by an insured, fall into an exclusion   Here is an example of such an exclusion. Considerthe following exclusion found in Form 8430 and frequently denoted B.2.We[the insurer] do not provide Liability Coverage for the ownership, maintenanceor use of any vehicle, other than yourcovered auto, which is(a)owned by you, or(b)furnished or available for your regular use.

Empiricallyspeaking, what constitutes regular usemay not always be empirically clear.Once a month?  Twice a month?  Once a week? And so on.  At the same time, the word “regular” in theexclusion is probably not ambiguous.  Agreat many central cases are easily determined from obvious facts.  At the edges of the term, there is somevagueness.[15]    Itshould not be taken to imply ambiguity.Similarly,if it is unclear what happened to cause an accident, a fire, or some otherproperty damage, an insurer may be tempted to deny a claim.  In the context of liability policies of avariety of sorts, the word “occurrence” is crucial.  Even though it is defined in terms of the accidental, the concept of occurrence is sometimes not easy tounderstand.  There has been substantialcontroversy, for example, as to whether the two airplanes which hit the two World TradeCenter buildingsconstituted one occurrence or two.  (Thisis true even though the airplane which hit the Pentagon on 9/11 and was part ofthe same organized plot was unquestionably a separate occurrence.)   Now,consider this analogy.  Suppose, a largesemi-truck crosses from one side of I-20 to the other side, say, because thedriver is not taking the prescription drugs he is supposed to.  Suppose the truck is going 85 mph and hitsCar One, drives Car Two off the road and into the water-filled ditch, hits CarsThree and Four at the same time—one on the right and one on the left, and thenthe truck swerves, flipping its trailer over and crushing Car Five, while thecab swings around and its forward and moving riverside side then hits CarSix.  How many accidents?  How many occurrences?   Saying there is just one occurrence in atleast some of these contexts, seems to curse ordinary language, offend ordinarycommon sense, and constitute a worship of the convenient.   Thesame applies to the idea of an accident.(A Quinnian Question:Perhaps these ideas are fully ambiguous, or something close to it.  Suppose some senior claims people at theinsurer know this.  Should adjuster beinstructed to interpret the language in favor of the insured?  What advice should the adjusters be given byinsurance coverage counsel?)Oftenwhen the adjustment results are cloudy, access to adjudication should be aninsurer’s right: “We – the company – can’t figure these facts out, so we willdo whatever the court tells us to do.  We’llconceptualize them as the court tells us.”Sometimes these attitudes are aggressive and/or unreasonable.  Sometimes they even cause stupid decisions.  Sometimes not.  Sometimes the decisions to seek adjudicationare appropriate and reasonable. Then again, sometimes the decision of aninsured to seek adjudication is improper.Suppose an insurer is pretty well convinced that there would be coverageif the claim were honest, but the insurer is convinced that the claim is nothonest, although it knows it cannot prove to be true—its belief.   Suppose an insurer seeks adjudication inorder to wear down and perhaps wear out the claimant whom it believes to bedishonest.  Is that an appropriateseeking of adjudication?  Probablynot.Withincertain limits, some extensions through CFP are obvious enough.  If the insured says that the north half ofthe building is damaged and it is obvious from damage to the roof that more ofthe building may be damaged, the insurer should look around a whole lot more.  This has already been discussed some.  In such cases, the insured should be told,even encouraged to expand the claim, explicitly, if the bureaucrats at theinsurer need it.  At the same time, it isnot clear that the insurer should be looking for entirely different types oflosses, when it investigates a given loss claim.  Thus, an insurer need not look for theftlosses when examining storm loss.  Themaxim, “Look for coverage!  does not prescribe that whileinvestigating one type of claim, an insurer needs to imagine all types ofclaims which might be brought under a regular type of policy and search for eachof them.  This would drive up the priceof insurance absurdly.  He is notconsistent with the spirit of the contract, which requires insureds to reportlosses before the insurer has an obligation to look for losses.  Besides, an insured might not want an insurerto look for a loss.  Indeed, it might notwish to discuss it.At the same time, if an unreportedloss is obvious, and the insured is in need of help, an adjuster for an insurershould probably point out to the insured that he has a different kind of lossand that he might want to file a claim for it.Indeed, if the loss is quite an old one, pointing it out in Year Tenmight be a good idea from a variety of points of view, including some interestsof the insurer, some interests of the insured, and perhaps those of variousother companies.Thus, there is a certain clarity inand certainty about CFP.  Although aninsurer is obligated to look for coverage, and it is clear that the insurer isobligated to look at empirical matters which present themselves, given theclaim, it is not clear how far the insurer must, in following and obeying CFP,go beyond the actual wording of the claim.Some distance is obvious enough, especially when the insured is a bit ofan amateur.  Rigid, restrictiveinterpretation of the items of the claim is inconsistent with the spirit ofinsurance.  Nevertheless, spendingvaluable, expensive time searching for all sorts of possible claims is a (atleast equally) silly idea.   Thus, CFP has its limits.Anotherfundamental adjustment principle is this:Sound adjusting is governed by empiricalfacts, not by subjective impressions.Let’s call this one the “Third Fundamental Principle” (“TFP”).  Its logic and status resembles SFP more thanit does CFP.  Observers of the empiricalworld can be wrong about what has happened and/or about what caused what.  Thus, a policyholder who claims that hisbuilding exploded and burned as the result of being attacked by Iraqiterrorists may not have “seen” the facts correctly when he observed eventssurrounding his building in rural Wyoming.  (It was a building that housed harvestedsugar beets.)  The policyholder could beperfectly honest, through and through, but he could also be wrong about thefacts.  Perhaps he mis-saw what wasprojected at his building.  Perhaps hemis-saw who did it.  Maybe he was drunk.  Possibly he was stoned.TFPworks well in bad-faith litigation, so long as the idea of subjectivity ismaximized.  The idea refers to that whichis mental only and not obviously connected by truth and/or evidence to theoutside world.  The purely subjective isvery much like guess-work by an adjuster.Sometimes it works for insurers and sometimes the opposite.  If the insurer paid absolute heed toempirical facts, and the policyholder is suing on the basis of subjectivity,the insurer will win the bad faith case, even if it loses the coveragecase.  If the insurer is depending on thesubjectivity of the adjuster and  amistake is made about coverage or about amounts owed, the insurer will lose thecontract case and may well lose the bad faith case. Rationality and empiricalevidence is the key to winning a bad faith case.Soundadjusting can have something to do with subjectiveimpressions, and even intuitions, of course, as already indicated, to theextent that these are stimuli of rational reasoning and the search forempirical evidence.  The adjuster mustalways include reference in her reports to an examination of what propositionsrelevant people believe (and/or appear to believe), and what they believe theyhave empirically observed, as well as what is actually establishable.  Subjective impressions are fine when they areno more than hypotheses.  Memory isimportant, of course, though it, too, is subjective.  Clear memory is even more important.  Reliable memory even more so: it is the mostimportant form of acceptable memory.Reliability is necessarily tied to empirical findings over time.  This fact is particularly true when causalprocesses are leading to possibly covered losses with sudden, mysterious, notactually physically observed, and so forth.Subjective contents of minds may be important, but they are frequentlynot decisive.  This is true even when agiven person’s memory is often reliable.This is particularly true when a witness’s memory is inconsistent withestablishable facts.  Looking forcoverage does not require that the subjective triumph over the objective.Usually, it does not even permit it.Now is it the literal truth of thenormative spirit of CFP to require that an insurer or the insurer’s adjusterabsurdly assumed that a claimant is an insured?Determining whether there is coverage requires determining whether aclaimant is a party to or otherwise included as an insured within an insurancecontract.  With respect to whethersomeone is a named insured, the insurer has to look at the contract, look atthe names, and look at the facts.  It isnot required to be particularly expansive, however.  This proposition is true even if the languageof the contract has to be reformed.  Amisspelled name, for example, does not create coverage for anyone other thanthe intended named insured.  Thesituation is somewhat different, probably, when there are additional insuredsincluded by categories within a policy, and one of the terms creatingadditional insureds is ambiguous.  It isprobably not radically different, however.The doctrine regarding ambiguities and interpretation is not usuallyapplied to proper names.A fourth fundamental, “first”principle (“FFP”) of adjusting is this:  An insurer should probably treat an unresolvableempirical doubt in favor of coverage.   Ifit is unclear what happened, or it is unclear what the policy says, the insurershould pay the just amount of the loss, given the character of the coverage.  The insurer should not reduce the size of its coveredcosts as a result of the monetary amount of the legitimate but mild doubts.  Lawsuits often work this way, however, sothese equations are very tempting in the adjustment process.  At the same time, if a claim is genuinely and substantially doubtful, it can be tried and thereby determined in acourt of law, and under certain circumstances it should be.  It is a well-established law, of course, thatgenuine contractual doubts about the meaning of language in a policy should beresolved in favor of coverage.  Indeed,they should not only be resolved in favor of coverage, they should be resolvedin favor of amounts of loss, where coverage is undisputed.  What applies to contract interpretationshould be taken to apply to factual evaluations.  Of course, there is no legally establisheddividing line between mild doubts and those doubts which are genuine and substantial.FFPexplicitly extends this fundamental principle from construing policy language onlyalso to construing ambiguous and unclear facts.This extension is particularly true when the probabilities of opposingfactual scenarios are indeterminable and must be treated as though they areapproximately the same.  In contrast, ifone probabilistic account of the nature of a loss, and what caused it, is quitehigh and the probability of its alternative is quite low, an insurer mayrationally embrace the more likely account of what happened.  If, on the other hand, the probabilities foralternative accounts are indeterminable and notstrikingly—dramatically—different, then the insurer should choose to begoverned by the empirical or historical account that favors the insured.  Such is the essence of FFP.CFP does not imply the existence ofa fiduciary duty running from an insurer to an insured.  At most, it implies a special relationship, if it implies any sort of relationship.  Similarly, FFP is not derived from the natureof the insurer-insured relationship.  Itis true because it stands in strong analogy with the legal principle governingthe proper interpretation of contracts (including insurance contracts) whichturn out to have used ambiguous language.(Of course, the principle of a contract interpretation pertaining toambiguous language is extremely important when it comes to adjusting claims.  Nevertheless, it is not—after the manner ofCFP—a practical, morally based, normative principle of adjustment.  It is a well-established principle of law andtherefore, affects adjustment principles.  Consequently, it need not be discussed as partof a group at which CFP is at the center.)

FFP is not usually quickly embracedby adjusters when they recognize the difference between it and CFP.  Nevertheless, the same moral, justice, andpublic policy arguments support both.Policyholders consider trying to talk adjusters into adopting thisprinciple.How does the principle Look for coverage! fit in with theseother principles?  CFP is supposed to be suggestive. It is supposed to be generative.  Any principle which is both of these must be verystrong and a bit obscure at the same time.Like many suggestive principles, CFP is fundamentally and significantlyambiguous.  This linguistic fact is not abad thing.  The core idea expressed inCFP is not ambiguous, and the ambiguity of the central term encourages thosewho embrace it to interpret it broadly.  Itsfundamental power lies in its core, its attractiveness, and its potentialinfluence.  The term can be powerfulwithout being completely precise.  Wordslike, “freedom,” “liberty,” “justice,” and “benevolence” are all like this.CFP is ambiguous in another way also.  The word “look” is not absolutely clear onthe surface of the language, precisely because it is broad and suggestive.  Indeed, the word “look” involves multiplemeanings, and the concept of looking isitself multi-dimensional.  Perhaps,therefore, at least arguably, CFP should be, itself construed in favor of theinsured, although this fact—if that’s what it is—should not include importingundenoted, unimplied, or unsuggested ideas into the concepts which are centralto the principle; i.e., really looking and actually finding coverage.Ofcourse, whatever else is true, a crucially important purpose of CFP is to motivate the rational adjuster.  It orients the attentions and the actions ofthe rational and properly committed adjuster and insurer.  It is not perfect, however.  Imperfections relate to problems.  There is tension between CFP and TFP. Lookfor coverage! implies work; itimplies effort; it implies concentration; it implies sympathy; it may evenimply staring, a bit.  This means pushingbeyond the empirically obvious.  At thesame time, looking for coverage does not imply inventing coverage.  It does not require saying you see somethingwhen you don’t.   There is no inconsistency between CFP and TFP,even if there is tension.CFP and FairnessInorder to consider Look for coverage!thoroughly, it is necessary to ask how it is justified.  It is necessary to ask why it is so completelytrue and central.  Obviously, CFP isattached to and implied by certain very important values.  Some of the most important fundamental valuesare knowledgeable-ness, impartiality, objectivity, and there is another one whichis also extremely important, namely, fairness.All four of these have already been mentioned and will be again.Thelast of these four implies another fundamental principle of adjustment—a fifth fundamentalprinciple:  Treat every claimant fairly! (5FP) Notice that 5FP refers to claimants not policyholders, while theremainder of the chapter refers to policyholders.  Of course, most claimants arepolicyholders.  Sometimes, one makes aclaim when they are not a policyholder.This happened not long ago in my office.One of the lawyers had a tree fall on her house.  She called her agent to see who her insurancecompany was.  Her agent said it was theABC Insurance Company.  The agent waswrong.  It turned out to be the XYZInsurance Company.  Thus, so far as ABCwas concerned, the claimant was not a policyholder, though she was aclaimant.  Once the claim was made toXYZ, my colleague became both claimant and a policyholder.  The general point of 5 FP is that insurersshould treat all claimants alike and should treat them as if they werepolicyholders.  Naturally, one of thefirst questions which comes up in applying CFP is this one:  Is the claimant a policyholder?  If the answer is clearly not, the insurancecompany need do nothing further.  It hasalready done everything it needs to do to look for coverage.  (Perhaps, there are exceptions.  If the ABC Insurance Company is part of agroup, the adjuster at ABC might check unified computer records if they exist,to see if the claimant is insured by another member of the group and then giveappropriate notice.)   Fairtreatment is a complex idea.  In thecontext of insurance adjustment, the idea of fairness moves in twodirections.  First, if every policyholdershould be treated fairly, then no policyholder should be treated better thanany other.  Wealthy policyholders shouldnot be treated better than poor ones.Similarly, impoverished policyholders should not be treated better thanrich policyholders.   Asian policyholdersshould not be treated better than Native American policyholders.  Policyholders from Mexico (or of Latino ancestry) shouldnot be treated better than policyholders who are African-American, African,Iraqi, Afghanistanian, and so forth.  Policyholders attempting to defraud thecompany should not be abused or treated worse than honest policyholders,although, it is perfectly appropriate to try to catch people committing fraud.[16]Second,the insurer itself should not be treated more differently than anypolicyholder.   Its second sense offairness is one hard to grasp.  Fairnessusually has to do with treating like cases alike.  An insurer and an insured qualify as likecases.  At the same time, favoring aninsured over the policyholder is, in some sense, unfair, given the function ofinsurance.   Thus, the idea of fairness has at least twoseparate and independent dimensions.  Thus,the general idea of fairness implies that adjusters should treat the interestsof the policyholder as at least equal in importance to those of the insurer. Manypeople say that the insured should treat the interest of the policy as moreimportant than its own.  This is one ofthe reasons why some are tempted to call insurers the fiduciaries of theirinsureds.[17]   The ideas of equality of interests, and theidea of balanced interests, both travel with the idea of fairness.Thissecond dimension of fairness raises an extreme problem for adjusters.  Adjusters are, to some extent, advocates, aswell as experts on property damage, other kinds of damage, and negotiators.  Claimsrepresentatives are not lawyer, or pseudo-lawyer, advocates on behalf ofinsurers, as opposed to insureds.  Theyare not exactly advocates for insureds either.Rather, they are advocates on behalf of actual as opposed to fictitiouscoverage.  (This is true both as towhether injuries and damages are covered and with respect to what amountsshould be paid pursuant to coverage.)   Adjusters are advocates on behalf of truth, asopposed to profitability (to whomever the profits might flow) and they areadvocates on behalf of impartiality and fairness.It is sometimes difficult forinsurers to understand or fully embrace these principles.  Sound adjusters generally do, at least intuitively,however.  One of the responsibilities ofsenior and supervising adjusters is to teach others in insurance companies thetruth and importance of these fundamental principles.  That’s not always easy.Justifying PrinciplesIt might be useful, in something closeto a conclusion, to look at how CFP might be justified.  In this context, it might be useful to take alook at some theories of business ethics and so forth.   Several have already been mentioned andexplored to some degree.  Those alreadymentioned can be formulated:Insurers should be appropriately knowledgeable whenit comes to adjustment.Insurers should be fair to claimants when it comes toadjustment.[18]Insurers should be impartial when it comes toadjustment.Insurers should be objective when it comes toadjustment.[19]Insurers should treat claimants rationally so far astheir claims are concerned in the process of adjustment.[20]Insurers should treat claimants reasonably in theprocess of adjustment.Each of theseprinciples is true, of course, and each of them implies that the adjusterseither employed by, or working for the insurer should be the same.  Here are two more:Insurers should treat claimants in morallyappropriate ways during the processes of adjustment.Insurers should observe the Golden Rule in dealingwith claimants in the adjustment process.It is a virtualcertainty that CFP is justified by some even more fundamental principle.  While CFP is a principle of insurance businessethics, it is not an obvious principle that leaps out at one.  This fact suggests the need forjustification.  Although it is afundamental principle of adjustment,it is not a fundamental principle of general business, business custom,[21]or morality in general.Oddly enough, none of these (probably)true even more basic principles, by itself entails CFP.  A more interesting question, of course, iswhether two or more of them in combination entail CFP.  In short, however, not every combination oftwo or more principles can be reviewed here.Hence, this nearly concluding section will examine each of them byitself as a possible foundation for CFP.Doesthe requirement of knowledgeability entail CFP?If the idea of being knowledgeablemeans being knowledgeable about an insured’s business, about what the insureddoes, about how his machines work, about how his house fits together, and soforth, the requirement of knowledgeability does not entail CFP.  An adjuster should be appropriatelyknowledgeable, of course.Doesthe requirement of fairness to claimants entail CFP?  The answer is Probably not., if the idea of fairness focuses on how differentclaimants should be treated—if the idea of fairness in claimants is understoodas the idea that all claimants should be treated alike.  If this were true, then an insurer mighttreat claimants fairly, but not very well.Doesthe requirement of impartiality entail CFP?The answer is, again, Probably not.   The reason is that if an insurer wererequired to treat insureds impartially but was permitted to construe all claimsnarrowly, then the requirement of impartiality would be met, but the requirementof CFP would not.  Exactly the same pointapplies to the requirement of objectivity.Therequirements of rationality and reasonable treatment are too vague toconstitute the foundation for CFP.  Thisis true, even though CFP is probably always reasonable, at least within somelimits, and probably always rational.There are limits, as has been observed above.  At the level of common sense, there areinteresting questions.  If an insured hasa $10,000.00 claim, it would cost $150,000.00 to investigate the claim, whatdoes CFP require?   What does rationalityrequire?  What does reasonable treatmentrequire?  There is a sense in whichrationality does not require the expenditure of $150,000.00.  At the same time, CFP may require that themoney be spent or—more likely—that the claim simply be paid because it is tooexpensive to look for coverage and claims which are indeterminate should bepaid if looking is a bad idea.(Obviously, this last observation, while quite common, is puzzling insome sense.)Doesthe Golden Rule establish CFP?Obviously, to the extent that the Golden Rule is a moral principle, itcomes close.  Most insurers would agreethat when their insurance claim is at stake, they want it examined verycarefully and expansively.  Consequently,the Golden Rule entails that this is how insurers should treat their owninsureds.  Nevertheless, it is notcompletely clear that the Golden Rule is a universal principle.  It is not even clear that it is as universalas CFP, granting that the latter is, in some sense, narrow, since it applies toinsurance adjustment and not to all human relations.Hereare the problems with the Golden Rule.For one thing, this Rule may work for people but not corporateentities.  Insurance companies need rulesthey can embrace not only for employees, but themselves as well.  Only this attitude will make training reallywork.  For another, this rule presupposesthat all people wish to be treated in roughly the same way.  That thesis is probably false. To be sure,most people don’t like to be irrationally criticized and verballyattacked.  Others, however, do like itand subtly encourage it, because they like debate, they enjoy abusing othersverbally, and so forth.  Not all peoplewish to be treated in the same way, then the Golden Rule is problematic as auniversalistic principle of morality.  Inaddition, some people may wonder whether the principle applies well tocorporate entities, as opposed to people.Finally,we look to the idea that all appropriateness—or, universalistic principles ofmoral appropriateness—entail CFP.  Onerecent influential thinker on the operation of businesses has a negativesuggestion.  John C. Maxwell, the author ofa number of books on leadership and corporate organization, has suggested thatthere is no such thing as “business” ethics.[22]   The reason to refer to Maxwell’s view isthat the idea of principles of moral appropriateness contains thebullet-pointed list and certainly supposes that there are not only such thingsas perfectly general moral principles, but also principles applicable to muchnarrower ranges of business.  Thissuggests that Maxwell is wrong and that there are principles which function asbusiness ethics.  Such restrictedprinciples may be derived from more general principles, but they are notidentical to more general moral principles.CFP may be like this.Theproblem now arises.  In order to work outthe answer to the foregoing question, it is necessary to think through whatconstitutes objectively establishable, general moral principles.   That enterprise cannot be conducted in thisshort paper.  However, a reasonablehypothesis is the following.  TheEighteenth Century famous, Enlightment German philosopher, Immanuel Kant(1724-1804), had it right.  Thefundamental moral principle is Treat eachperson as an end, and never merely as a means.[23]   If the insurer follows this principle inadjusting claims, it will be going in the right direction and will embraceCFP.  The paradoxical problem is thatKant’s Principle may not be completely consistent with capitalism.  There is a danger in capitalism and profitmaximization.  As Herbert Hoover onceremarked, “The trouble with capitalism is capitalists.  They’re too greedy.”[24]TestifyingObviously, it isappropriate that expert witnesses testify in insurance cases when some of theinsurer’s exposure to damages hinges on whether its adjusters did a reasonablejob. Often this an issue when the plaintiff—who is usually the policy holder ofhis assignee—is suing the insurer for common law bad faith, for statutoryviolations (i.e., statutory bad faith), or for a Stowers  violation.  I shall focus on first-party coverage.Fairly obviously,industry standards, procedures,  andcustoms regarding claims adjustment are relevant.  Experts are often called to testify on these.[25]  Sometimes they are adjusters, claimsexecutives, or retired folks who used to do such things; sometimes they areexperienced insurance lawyers;  sometimesthey are professors of something.  Theproper scope of  adjuster or claimsinvestigations is crucial.[26]  Indeed, this is one of the most importantareas of expert testimony and hence thought—this and the attitude in whichinvestigation are conducted and utilized. Interesting, it leads back to Look for coverage!ConclusionThispaper started with a hypothesis that Lookfor coverage! is one of—if not, the—fundamentalprinciples of really good adjustment practice.The surface themes of this paper are to explore CFP and related to someother principles.  The underlying themeof the paper is that CFP has enormous implications for the way to conductinsurance litigation, especially when an insurer is accused of bad faith.  The policyholder lawyer ought to try toestablish, at least, these two propositions:the first is that there is coverage, while the second is that theinsurer did not follow CFP.  The strategyof the insurer should be to try to show that there is no coverage, but that ifthere is, it followed CFP.  The moredetailed that the CFP-related part of the case can be articulated, developedand concluded, the more likely it is who will win the case.There is a final question ofinterest to lawyers.  To what extentshould CFP be involved in defending insurer who have been sued?  This is an ambiguous question.  Here is Version One:  Should the defense of the bad faith case beorganized around defeating any suggestion that CFP was violated?  Now Version Two:  Should adjuster-witnesses be advised to tryand keep CFP in mind?  VersionThree:  If so, how and to whatextent?

1. Michael Sean Quinn, The Ethical Habitat of Adjusters: Principles, Problems, and Practicalities. This essay was published in two parts in Volume 10 of the ENVIRONMENTAL CLAIMS JOURNAL. Part I appeared in the Winter 1998 at p. 91, while Part II appeared in the Spring edition at p. 77.

2 See Kevin M. Quinley, ADJUSTING ADVERSITY: HOW CLAIMS PROS CONQUER WORSTCASE SCENARIOS (2003). Mr. Quinley has written a lot, over time, and some of itcan be quite helpful.  He is given toorderly and complete-looking lists so they can be helpful in thinking about howto take adjuster depositions.  Mr.Quinley, C.P.C.U., A.I.C., also wrote WELL ADJUSTER; 185 SUCCESS TIPS FOR THEADJUSTER’S CAREER (2001).  His bookcontains 10 fundamental principles and a large variety of practical tips, suchas: #151: “Watch the fuel gauge,” which—I think—is “Don’t fun out of gas.”    Quinley’s TIME MANAGEMENT FOR CLAIMSPROFESSIONALS 2000) is also helpful, s is his THE QUALITY PLAN; PRACTICALADVICE TO KEEP CLAIMS CLIENT COMING BACK (1992).  This last aging book is about independentadjusting, and it was published by Claims Books in Seattle, Washington. There have been no substantive alterations in the literature since then with the possible exception of cyber evolution and techniques of investigation. These developments have not changed any fundamental principles, however; only techniques have changed, and there have not been many of those changes in the last decade.

[3] Iam probably among the many.  Obviously,it is illegitimate to ask an adjuster in a deposition whether he believes inthe existence of one perfect God, His presence in the work, the damnation ofthe dishonest and overly self-interest,. whether he believes that Jesus Christis his savior, or whey s/he goes to church.Still, one wonders, Would a devoteChristian be a better adjuster than an atheist? Of course, not even thisquestion can be asked in discovery or at trial.

[4]Ken Brownlee, WINNING BY THE RULES: ETHICS AND SUCCESS IN THE INSURANCEPROFESSION 70 (2001).  Obviously, this isnot exactly the idea of faith to be found in religion—not even close. (Note thetitle.  Brownlee argues that insuranceadjustment is a profession.  This can bean interesting—if abstract area—to explore in some depositions, sinceprofessions are often regarded as having higher ethical standards than merevocations.   Mr. Brownlee is also theco-author of a helpful book for adjusting and helping lawyers prepare to deposeor examine adjusters.  Pat Magarick andKen Brownlee, CASUALTY, FIRE & MARINE INVESTIGATION CHECKLISTS (5thEd. 2004).  Curiously, the book WINNINGBY THE RULES is inexplicitly oriented toward liability adjustment.

[5] Here isan example.  Liability carriers are oftenobligated to defend their insured.  Theinsurer therefore has the right to command the lawyer, who is a fiduciary ofthe insured who is at least one of the lawyers clients.  Does the insurer have a fiduciary to run thedefense in this or that way?  Are therenot fundamental conflicts of interest?The insurer must look after its insured, since it has contracted to doso, but it may have obligations, e.g., to its stockholders, to look after itsown profits.[6] He isanother of the truly first class adjusters, as well as a willing teacher.  Moyer is also a very knowledgeable andeffective expert witness.

[7]See Steven D. Levitt and Stephen J. Dubner, FREAKONOMICS; A ROGUE ECONOMISTEXPLORES THE HIDDEN SIDE OF EVERYTHING (2005).  Their second chapter argues that cheating is a fairly universalphenomenon, and he develops an argument as to why this is true.

[8]Here is a version which would cover insurers only:  Sophisticatedsubtlety is not easy to defend when it is employed by insurers to justifydenying claims. This is almost certainly true in personal claims, such asauto and homeowner claims.  It workspretty well in workers compensation and commercial building claims.  It may not work quite so well in businessinterruption claims, especially where the lost profits derive from very complexactivities and pricing systems, e.g., big time utilities.[9]See Ray Bourhis, INSULT TO INJURY: INSURANCE, FRAUD, AND THE BIG BUSINESS OF BADFAITH (2005).  The author provides ahistory of a claims department—or, set of them—in this exciting litigation bookabout adjustment in disability insurance.The errors of the insurance company in this book illustrate theintuitive importance of Look forcoverage! in insurance trial work.

[10]  What does it mean, after all, to say that“all men are created equal” or to assert that “it is self-evident that everyperson has a right to pursue happiness.”[11]Consider the following passage in a biography of Maurice (“Hank”)Greenberg, formerly the head of AIG and now the leader of the Starr Group ofinsurers and intermediaries. “”While one part of the Greenberg profit formulawas to charge high premiums, another was to pay as few claims as possible.  To that end, AIG has always had a notoriouslytough claims department that is famous for finding reasons to set policyholdersaway empty-handed.  The company was sotough, in fact, that some portfolio managers joked that they loved to buy AIGstock, but they would never consider buying an AIG policy.  There is nothing wrong with that approach, ofcourse, provided that it isn’t carried to such lengths that it drives businessaway.  Management’s first and foremostobligation is to make as much money for its shareholders as it can.  Its only real obligation to policy holders isto honor the contract.”  Ron Shelp withAl Ehrbar, FALLEN GIANT:  THE AMAZINGSTORY OF HANK GREENBERG AND THE HISTORY OF AIG 7 (2006). Many observers believethat AIG has changed over time in this regard.A Quinnian Question: Can an insurer both (i) affirmatively,actively, and as a matter of business policytry to avoid paying as many claims as possible (and/or pay as little aspossible on each claim paid) and (ii) systematically and as a matter ofbusiness policy be trying to honor its insurance contracts?[12]Brownlee, supra, n. 4 at 71.[13]Adjusters need to be very careful about this feeling.  If a claim comes in much higher than anticipated,there is going to be a tendency to suspect that the claim has been fraudulentlyexpanded.  If this suspicion determines agiven adjustment process through and through, and the suspicion turns out notto be true, there is a substantial risk that the insurer will mistreat theinsured.  In some sense, fraudulentclaims are against insurers in a waylegitimate claims are not.  Claims against will almost always be treateddifferently than claims for.[14]Is this one interesting?  “[A]lthough aconcept of individual authorship might have existed in the Middle Ages, thtconcept was very different from the proprietary notion of authorship we havetoday or the one that existence in Rome during the Classical Age.  As Ernst Goldschmidt pointed out, ‘[t]o themedieval scholar the question: Who wrote this book? Would not necessarily oreven primarily mean: Who composed this book? It might convey that the inquirewas for the identity of the scribe not the author.’  The question meant liberally who wrote thebook.” Peter K. Yu, Of Monks, Medievalscribes, and Middlemen, 1 MICH. ST. L.REV. 1 (2006).  Yu’s quote is from E. Ph.Goldschmidt, MIDIEVAL TEXTS AND THEIR FIRST APPEARANCE IN PRINT 102(1943).  Now, forget about history.  Could the same problem arise today.  Consider these questions about handwrittenmanuscripts:  Who wrote this diary?  Who wrote this contract? Who wrote this will?Who write this draft of the novel?  Nowsuppose the insured is whoever “wrote” something.[15]  See Timothy Williamson, Vagueness (1994).  See also Rosanna Keefen Petersmith, Eds., Vagueness:A Reader  (1999).[16]  Several Authors, Fraud Showdown At The PC Corral!,Crackdown! (June 2005)(“A Special Supplement to Claims in National Underwriter Magazines.”)  Of course, policyholder fraud on insurance isnothing new.  For an account of a wholeseries of such frauds involving missing ships during the last third of the 19thCentury, see Ann Larabee, The DynamiteFiend:  The Chilling Tale of aConfederate Spy, Con Artis, and Mass Murderer  141 (2005).[17]  See William T. Barker, & Others, Is An Insurer A Fiduciary To Its Insureds?,  25 Torts& Ins. L.J. 1 (Fall 1989).[18]  Nicholas Rescher, Fairness; Theory & Practice Of Distributive Justice (2002).

[19]  See Nicholas Rescher, Objectivity:  The ObligationsOf Impersonal Reason (1997).

[20]See Robert Fogelin, Walking The Tightropeof Reason: The Precarious Life of a rational annimal (2003).[21]  See EkkehartSchlicht, On Custom in the Economy (OxfordUniversity Press 1998).[22]  John C. Maxwell, Ethics 101:  What EveryLeader Needs to Know, Preface (2003).This book was originally published as There’sNo Such Thing As “Business” Ethics.As indicated, Maxwell is a leading thinker and teacher when it comes toissues of business leadership.  See JohnC. Maxwell, Developing The Leader Withinyou (1993), and many other works.[23]  Interestingly, founding fathers of the United States, Adams, Hamilton,Jefferson, Madison,and so forth, read many Eighteenth Century European thinkers:  Burice, Voltaire, Diderot, and so forth.  They did not read Kant, apparently.   One can understand why.  The prose is difficult.  See, for example, Ron Chernow, Alexander Hamilton (2004).[24]  Quoted in John Steele Gordon, An Empire of Wealth:  The Epic History Of American Economic Power 283(2004).[25] See Hangarter v. Provident Life & Acc. Co., 373F3d 998 (9th Cir. 2004).  Thisis the care which  is part of the focusof  the book INSULT TO INJURY, referencedin a footnote early in this paper. See also Douglas G. Houser and Dennis J.Wall, Expert Witnesses on  Insurance Issues: Locating Them, RetainingThem and Presenting Their Testimony, ___FDCC QUARTERLY 33 (Fall 2005).See Charles Platto and William T. Barker,  APractical Guide to the Use of Experts in Insurance Claim Adjustment, 23INS. LITIG. RPTR 133 (2001).  See alsoWilliam T. Barker, Charles Plato and Polly Estes, A Legal Theory of the Use of Experts in Insurance Claim Adjustment, Id. at 140.[26] State Farm Fire & Cas. Co. v.Simmons,  963 S.W.2d 42 (Tex. 1998).