It is not unusual in coverage litigation for the attorney for the insured to ask a question something like this:
Q. Does this policy cover losses of the following sort [fill in the blank]?
A. It can’t be answered. Every claim is unique.
Or this one:
Q. This is a construction motor vehicle. Your policy covers such vehicles using wheels, true?’
A. Setting aside the exclusions, the answer is still unclear.
A. Each claim is unique.
A. [Or.] The facts underlying each claim are unique.
These sorts of questions can go on for hundreds of pages–thousands of combinations. The answer is certainly not unique. This answer is a more or less universal pattern. Adjusters learn it in the analog of the University of Farmers Claims, The College of Hartford Adjustments, The Sort of Graduate School of Tennessee Mutual Workers Comp Insurance Work, and so on. Even coverage litigators for insurers know the routine, although I’m not sure the lawyers have to teach it to the adjusters; it may be the other way around.
The insurers are quite wrong about the power of the “It’s Unique Answer” (IUA). In fact, it is quite dangerous, especially in jury trials. For this reason, insurer lawyers should not “authorize” its unlimited or even substantial use, and lawyers for insureds should use it often and encourage it. Questions that trigger that answer are in the category of those wonderful questions where the examining lawyer does not really care what the answer is. Whatever answer is given will help his client–the more times the better.
(1)If the adjuster’s point is “I can’t even start answering that question because every case is unique,” the answer is obviously false, and everyone either knows that or can be taught it in about 5.”
(2) If the adjuster starts giving an answer without thinking about it, s/he may well make a usable error.
(3) The best answer is, “I’m not sure, but I’ll try to give you a conjectural answer. I may get it wrong, since I am hearing the question for the first time, so far as I can remember.
What is so terribly wrong is the “Every claim is unique, so the question cannot be answered” answer.
The answer to this question is both simpler and more complex than one might think.
First, in a trivial sense. The insurer is right. All claims are unique. Consider two claims, otherwise of the same sort, one of which occurs at 6 PM while the other occurs at 6:01 PM. They are unique with respect to each other. But that is not really the meaning of “unique.”
Second, in substantive and non-trivial cases, the insurer is wrong. This fact the “It’s unique” answer little more-if anything more–evasive.
Originally posted on 08/09/2013 @ 4:26 pm