INSURANCE COVERAGE LITIGATION: 
A FEW DEPOSITION QUESTIONS
Michael Sean Quinn, Ph.D, J.D., C.P.C.U., Etc.
2112 Hartford Rd
Austin, Texas 78703
(O & C) 512-656-9759
(Resumes at  www.michaelseanquinn.com)



Insurance bad faith cases can depend on the common law and/or relevant statutes.  Both sources require insurer to move “with dispatch” (my term) in handling claims.  Sometimes statutes specify particular internals, e.g., 10 days, two weeks, etc. Usually, those dates are measured from the insurer receives needed material from the insured. 

Against that background, consider this question:

Is it important for an insurer to determine their coverage position as quickly as possible?

The correct answer to this question is an expanded version of “Yes,” matters are actually more complicated than answering a simple “Yes.” Now for the problem. In depositions, examining counsel always tries to get “Yes” answers to questions like this one.  This “push” needs to be resisted.

The reason is that the idea of the possible is a very complex one.  The term “possible” is ambiguous, and can easily create confusion.  If the term “possible” means “as quickly as it could be done,” then such a decision can be made in a matter of minutes, and that is the intent of the lawyer for the policyholder.  Rhetorically, the goal is to create a trap where the testifying adjuster or expert will be committed to an absurdly short period of time.

Here are some of the components that need to be added: (1) being able to make the decision based upon evidence and reason is crucial, (2) the use of evidence and reason requiring access to relevant information, and this often means documents and people, (3) the analysis at the insurance company (or its managing general agent or its independent adjuster and then itself) needs stop be able to think about it, and (4) trying to do something in a reasonable manner takes time. 

It other words the answer should include all of (1)-(4), it may be advisable to include the world “dispatch,” or a word equivalent to or like it.  So here are some other possibilities:
(1) Yes and No.
(2) No and Yes.
(3) It depends on what one means by “possible.”
I tend to prefer #(3).  

Often the next question is:

What do you mean by “possible”?

In that case the answer begins with “It depends on the situation.”  A witness could stop there, but that’s ill advised.  It looks like the witness is trying to avoid answering the question forth rightly.  

It’s better to go this way:

When I say “possible” in dealing with questions like this, I mean to be saying “when it can be done reasonable on the basis of actual information provided to or obtained by the carrier. Trying to do something right may takes time.”

It’s fine to stop right there, but if examining counsel really wants an answer, give counsel this:

In this context “possible” means commencing the adjustment process directly, seeking information as part of that process, thinking about the problems objectively, obtaining help as needed, and then drawing a conclusion.  All of this should be done with dispatch.

Many lawyers will object to this answer: “Objection, not responsive.” And if the lawyer is a donkey’s behind, this will said, “Now, listen to my question.” 

In my opinion, the best response is simply to say,

I don’t have anything else to say. I’ve answered your question.

If the lawyer is a large donkey with a huge behind, he might say,

Repeat back to my question.

This is not a question, so the witness does not need to response. Our large donkey might ask,

What question do you think I asked?

At this point, the witness has three choices. (1) Try to repeat it. (2) Ask the court reporter to read it. (3) Ask counsel to ask it again. Of these #(3) is the best.
Above all, simply keep repeating what you have said, in one way or another.  Examining counsel is eating up his clock.

There is a variation on this discussion. Suppose the lawyer’s question is this:

It’s important for an insurer to try and determine and announce its coverage position asap, true.

This is a leading question, but a “Yes” or “No” answer should be avoided. Here are options:

(1) I don’t understand your question, please spell it out for me.
(2) Depends
(3) Depends on the circumstances
(4) Can’t be answered that way.
(5) I don’t know how to answer what you’ve asked when you put it this way.

Any of these will do. There is no—really, NO!–such thing as a “’Yes’ or ‘No’” question.  

There are always several more answers:

(6) I don’t know.
(7) I don’t understand.
(8) I don’t remember what “asap” means. (This is a nice way into the idea of the “possible.”)

Examining lawyers will almost always tell a witness that if he does not understand a question, ask him/her to explain it. So do this:

(9) I don’t understand how the term “try” is figuring in here.
(10)                    I don’t really see how the term “possible” works in this sentence.
(11)                    Wait, what does “possible” mean in your questions.


Try not to fall into deposition traps!  Go slow. Listen carefully. Hesitate. Don’t hesitate to hesitate.