Leveraging Demand Letters to Obtain High Settlements in Auto Accident Cases

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1 Presenting a live 90-minute webinar with interactive Q&A Leveraging Demand Letters to Obtain High Settlements in Auto Accident Cases Tactics to Influence Insurance Companies to Pay at or Above Policy Limits THURSDAY, FEBRUARY 12, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Ronald J. Cook, Partner, Willoughby Stuart Bening & Cook, San Jose, Calif. Richard Hastings, Founding Partner, Hastings Cohan & Walsh, Ridgefield, Conn. Dr. Frank Liberti, St. Petersburg, Fla. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Leveraging Demand Letters to Obtain Higher Settlements in Auto Accident Claims TIPS AND TECHNIQUES FOR INCREASING THE VALUE OF YOUR CLIENT S CLAIM Richard P. Hastings

6 Pulling Back the Curtain Behind the Process of Drafting the Settlement Demand Letter The Client The Healthcare Providers The Adjuster Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 6

7 The Plaintiff s Attorney & How YOU Can Affect the Value Detailed intake; Educate your client about responsibilities and expectations; Review client s medical records and provide to client; Go over inconsistencies and have client review them with their medical provider; and Develop a rapport with the adjuster and constantly provide updates. Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 7

8 How Your Client Can Affect the Value of their Case Specifically describing all problems to medical professionals; Prepare for each medical appointment; Regular and consistent treatment; and Carefully review medical records and report inaccuracies to the doctor. Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 8

9 How Your Dealings with the Adjuster Can Affect the Value Develop a relationship; Under promise and over deliver; Constantly update; Learn about the adjuster; Know what you want to accomplish before you call; and Always be prepared and don t let the adjuster know more about your client than you do. Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 9

10 Adding Value Through Your Client s Medical Records Educate your client; Specifically describing pain complaints; How do these problems affect them; Duties under duress; and Home health activities and aids. Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 10

11 Value Drivers Medical bills; Specialists; Positive diagnostic testing; Buzz words and key phrases; Documented out of pocket expenses; Medical insurance premiums; Property damage to your vehicle; Documented lost time from work; and Duties under duress. Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 11

12 Tying it ALL Together 1. Client education; 2. Robust medical records; 3. Detailed client challenges; and 4. Constant communication with adjuster. Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 12

13 ADJUSTER SECRETS Attorney & Adjuster Tips & Techniques That Guarantee Larger Settlements FREE Chapter Download Richard P. Hastings - Connecticut Personal Injury & Accident Attorney Hastings, Cohan & Walsh, LLP 13

14 Using Value Divers and Decision Points to Leverage Demand Letters to Obtain Higher Settlements in Auto Accident Cases Dr. Frank Liberti

15 Its No Secret to personal injury lawyers that the insurance industry uses an armory of claims handling software and computer programs to determine claim value and cut settlement case value reserves. 15

16 As the software s engage cost containment measures to limit bodily injury settlements, it has made it difficult for plaintiff attorneys to oppose, without specific knowledge of how the system works, adding a new layer of complexity to the drafting of demand letters. 16

17 Colossus One of the most widely used claims settlement software s is Colossus, from Computer Sciences Corp. (CSC). According to CSC spokesperson Marian Kelley, Colossus is used by more than 50 percent of the nation's claims adjusters and by 38 agencies that represent more than 300 insurance companies. 17

18 Mr. Smith of American National Property and Casualty Co. Mr. Smith of American National insurers have invested big-time bucks in Colossus and every adjuster is expected to use the computer program for all applicable claims. Colossus' price is a well-kept secret, but it's very expensive," according to Smith. 18

19 Every Insurance Company Uses A Software. There are 80 different version as; Injury IQ Teach Injury Claims Evaluations ( ICE ) and Claims Outcome Advisor ( COA ) 19

20 Sylvia Hsieh, Lawyers USA (2006): plaintiffs' attorneys are not keeping up with the insurance companies, and for the most part are getting beaten by the system. 20

21 Karen Greig, ESQ. in Bellevue, Wash., who's litigated dozens of bodily injury suits against Allstate says: "There's something sinister and surreal about a computer becoming the arbiter of the value of human life" "You can't negotiate with a computer." 21

22 Plaintiff Attorneys Agree Various Elements Of The Software s Operate In A Systematic Way to Deny Policyholders Legitimate Benefits 22

23 Plaintiff Disadvantage...since Colossus guidelines are not available to the public, it puts plaintiffs at a severe disadvantage. 23

24 Since 2004, All State has been ignoring a Superior Court order to release the Colossus guidelines known as: Decision Points & Value Drivers from which they determine settlement value. They claim their Decision Point Guidelines are proprietary and they elect their right to Civil Disrespect. 24

25 FINE Allstate Agreed to Pay a Ten Million Dollar ($10,000,000.00) Regulatory Settlement. 25

26 Business Processing Improvement (BPI) & Core Claim Process Redesign (CCPR) Changed Personal Injury It s a Revolution and Not What You Think 26

27 CCPR HARMS PUBLIC INTEREST SUPREME COURT RULING Allstate s Practice of Law under CCPR Harms the Public Interest. CCPR HARMFUL TO PUBLIC Washington State Bar Assn. v. Great Western Union Federal Sav. and Loan Ass n., 91 Wn.2d 48, 54-55, 586 P.2d 870 (1978). The Supreme Court believes CCPR gives a competitive edge that goes beyond expense control in reducing claims costs. 27

28 Consumer Federation Of America released it's report citing court documents that reveal; insurer's utilization of claims evaluation software's result in huge and questionable insurer claims savings 28

29 The Report Stated; computer claims software s utilized by 95% of the nation s largest insurance companies, can be manipulated to produce unjustifiably low injury payments to consumers and tens of millions of dollars in illegitimate savings for insurers. 29

30 The Report Also Stated: unfortunately, these companies violate their obligation to deliver fair claims payments to their own policyholders on a huge scale, in order to increase profits. 30

31 And finally: most of the nation s top insurers use Claim s Handling Software s in ways that put millions of American consumers at risk of not getting the claims payments that they paid for with their premiums. 31

32 We Practice In A World Of Improper Claims Tactics, Driven By Computers And Decision Point Guidelines 32

33 Decision Points The set of factors for which Colossus determines a range of values that convert into settlement dollars using a formula. Decision points are the points by which Decisions are made regards value 33

34 The Formula To Convert Decision Points Into Settlement Dollars Is: Point to Dollar Translation Percentage Multiplier Formula! 34

35 Decision Points that Determine Value 14,357 Value Drivers 27,125 Severity Drivers 26,350 Standard Multipliers 33 Liability Drivers 15 Additional Increase Multipliers 67,847 Decision Points PLUS: Injury Severity Points Case Maximizers Prolonged Modifiers 35

36 Since these decision points are not well known by the legal, medical or public communities, it makes it difficult to represent the full value of the injury. 36

37 80% Of The Decision Points Are Missing In The Average Demand 37

38 Missing Decision Points Equal Missing Settlement Dollars 38

39 Understanding that missing Decision Points cause missing settlement value. 39

40 How It Works To use these claim settlement software s as Colossus, an adjuster inputs the Decision Points and Value Drivers about a claim and Colossus calculates a range of values for the claim's worth. 40

41 Original programmers at CSC, Report Colossus was set up to calculate GENERAL DAMAGE CATEGORIES based upon Decision Point Guidelines in: Administrative Economic and Legal Areas 41

42 Original programmers at CSC Report Colossus was also set up to calculate GENERAL MEDICAL INJURY (non-economic) damages based upon four (4) medical decision point corners of a claim. 42

43 1. Injury Severity Points 2. Duties Under Duress 3. Loss Of Enjoyment 4. % Whole Person Impairment 43

44 Assessing Medical Claim Value Injury Types:..25% value Duties under Duress:.25% value Loss Of Enjoyment:.25% value % Whole Person Impairment:..25% value 100% value 44

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50 #1 Injury Severity Points Injuries are represented by diagnoses. Colossus requires double digit diagnoses represented by ICD 9 Codes. Average # of diagnosis = 4 HCFA form = room for 4 diagnoses 1 st area of missing Decision Points and missing value therefore is the diagnoses = 25% value 50

51 Las Vegas Attorney Steven Burris Reports "When it comes to discussing the damages issues re injuries, the lawyer must stick to the four corners of the medical records documents. 1. Injury Severity Points 2. Duties Under Duress 3. Loss of Enjoyment 4. % Whole Person Impairment If it is not in the medical records, it doesn't count. Stupid rule, but that's apparently how it's done." 51

52 Therefore the physician is the single most important aspect of a Colossus case and data contained within the doctor s chart notes, [not narrative] are the only source of information that adjustors are allowed to derive decision points from to enter into Colossus. 52

53 Injury Model Assessment International Classification of Functioning DRE Categories DBI Estimates Spine Impairment Summary Specific Disorders of the Spine 5th Edition AMA Guidelines Whole Person Impairment 53

54 Aaron DeShaw, ESQ It s no secret that many plaintiffs' attorneys believe there is nothing that can be done to prevent unfair settlements unless they involve major injuries. He points out that this is NOT the case as soft tissue injuries meet the Serious Injury Threshold. 54

55 1. MTBI = Closed Head Injuries 2. Sensory Loss 3. Motor Loss /weakness 4. Range Of Motion Loss 5. Diminished Deep Tendon Responses 6. Disc (Disorder/Derangement) 7. Ligament Laxity (728.4 Loss of Segment Integrity/AOMSI) 8. Radiculopathies 9. Fractures (Vertebral Body, Uncinate Process) 10. Spondylolisthesis Stenosis

56 #2 % Whole Person Impairment The evaluator must identify the involved body; Parts Systems and Functions The evaluator must list: AMA Guide Edition Chapter and Table used to make the WPI Determination. 56

57 Colossus Uses 5th Edition AMA Guides All claims should be assessed for whole person impairment according to 5 th edition guides. 57

58 Attorney Aaron DeShaw: "While the legal profession has historically used narrative-style demand letters to convey claims, much of the information provided in medical or legal narrative style demand letters has no value in Colossus. Adjusters look almost entirely to the medical records for the decision points that input value required by Colossus. Only a minority of lawyers and doctors have a clue what's going on. Attorneys need to convey data about the claim using TABLE format. 58

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61 SO, HOW CAN WE PREVENT OR REDUCE IMPROPER, LOW VALUATION? 61

62 2 Main Factors All settlement claims will be devalued due to the use of the insurance company s software s and Business Process Improvement (BPI) culture, however settling a claim favorably without trial is dependent upon two main factors: 1). The physician s ability to chart the medical decision points so they input value into Colossus and 2). The attorneys specific mirroring, formatting and sequencing of the decision points in the demand letter 62

63 Strict Requirements of Adjuster The claims handling software s themselves make a lot of demands on adjusters, requiring them to enter scores of information. You have to have a good medical record of what the injury is" says Mr. Smith of American National Property and Casualty Co. 63

64 Peripherals "Any injury can have many peripherals attached to it. A neck injury might cause a pinched nerve, which may or may not cause injury down to the finger tip, for example. Colossus is very good at finding out what kind of injuries are actually present. The more information an adjuster inputs, the more accurate Colossus' calculation becomes. 64

65 What To Include In Demand Because Colossus asks many specific questions about claims factors, you need to know what is being asked, what is being valued, what is missing and what to include in your demand. 65

66 Decision Points Normally Included In The Average Demand: Summary of Claim Background Damages Facts and faults of Accident - Liability Injuries and Treatment Economic factors (property damage, lost wages, etc). Medical Expenses current and future Past Medical History Evaluation, Summary, settlement demand and supporting documents 66

67 Colossus Expert & Attorney Aaron Deshaw Plaintiffs' lawyers are frequently unaware of what other decision points & value drivers are treated as significant by Colossus. 67

68 Value Drivers That Should Be Included In Every Demand: In response to the data contained in both the medical chart notes and the demand, Colossus will then bring up dropdown screens seeking additional information. 68

69 Colossus Questions Here are some of the medical pop-up questions Colossus will ask when seeking data. 69

70 As we review the following list, compare how many Administrative Legal Economic and Medical Decision Points are included and how many are omitted in both your medical experts chart notes and also in your demand. 70

71 Points To Be Included In Demand Medical, Administrative, Legal & Economic Decision Points Value Drivers Injury Severity Points Case Maximizers Prolonged Modifiers Standard Multipliers Additional Increase Multipliers Liability Drivers Injury Drivers Mileage Drivers Undisputed Statements Of Fact Points Of Memorandum Evidentiary Burdens Of Proof & Authorities 71

72 Points To Be Included In Demand Medical History Medical Office Records with Laboratory Tests, Special Tests, Diagnostic Procedures Hospital Records Records From Client Records From Other Sources Explanations For Delay In Seeking Care Explanations For Gaps In Treatment Medical Validation Letter 2 nd opinion from independent 3 rd medical party 72

73 Functional Physical Examination Injury Types (ICD s) [25% value of claim] Symptoms (Documented) Laboratory Tests Special Tests (CRMA/MDF) Diagnostic Procedures Specialist s Evaluation Diagnoses (Double Digits) Complaints (intensity, frequency, type, radiation, further effects) Duties Under Duress [25% value of claim] Loss Of Enjoyment [25% value of claim] Treatment Stability of Medical Condition 73

74 Medical Determination of Future Treatment Prognosis Overall Prognosis Each Body Area Future Treatment Plan Number of Future Visits (On stable injuries) Future Treatment Duration and Time Lines MMI For Each Body Part % Whole Person Impairment with Medical Validation Letter. [25% value of claim] Evidentiary burdens of proof showing soft tissue injuries meet Serious Injury Thresholds Diagnostic Related Estimates (DRE s) Diagnosis Based Injuries (DBI s) Spine Impairment Summary Specific Disorders Of The Spine Whole Person Impairment 74

75 Monetary Factors Administrative and legal costs Damages Current Medical Costs Future Medical Costs and Probability Economic Expenses & Loses Property Damage & any additional losses Vehicle Repair Costs Car Rental Expenses Mileage cents per mile Current Income Loss Future Income Loss Supportive Statements of Costs & Losses 75

76 ATTORNEY OUTLINE/ CHECKLIST FOR DEMAND LETTER Attorney Use this checklist to tag and extract decision points and value drivers to be included in the demand to input value into Colossus Attorney Demand Letter 1. Medical History 2. Medical Office records 3. Hospital Records 4. Records From Other Source 5. Records From Client 6. Explain Delay in Seeking Care 7. Explain Gaps in Treatment 8. Physical Examination 9. Injuries (ICD-9 codes) 10.Symptoms (Documented) 11.Laboratory Tests 12.Special Tests 13.Diagnostic Procedures 14.Specialist s Evaluation 15.Medical Validation & Determination Letter 16.Diagnoses(double digits) 76

77 ATTORNEY OUTLINE/ CHECKLIST FOR DEMAND LETTER Claim Finalization and Demand Letter Attorney Attorney Demand Letter 17. Complaints have to be rated according to; intensity, frequency, type, radiation, further effects 18.Duties Under Duress 19.Loss Of Enjoyment 20.Treatment 21.Stability of Medical Condition 22.Medical Determination of Future Treatment 23.Prognosis Overall 24.Prognosis Each Body Area 25.Future Treatment Plan 26.Number of Future Visits (if Not Stable) 27. Future Treatment Duration and Time Line 28.MMI For Each Body Part 29.% Whole Person Impairment (Provided by MD Utilizing 5 th Edition AMA Guidelines or with a Medical Validation Letter as a 2 nd Opinion from an MD) 30.Monetary Damages Current Medical Costs Future Medical Costs and Probability Economic Loses Property Damage & any additional losses Vehicle Repair Costs Car Rental Expenses Mileage cents per mile Current Income Loss Future Income Loss Supportive Statements of Costs & Losses 77

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79 SOFT TISSUE INJURY LIABILITY CASE CLAIM RESERVE 2004 was $15, is $5,800 79

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82 How Do We Win the Greater Weight of the Evidence Challenges? 82

83 Validate Colossus rates a 2nd opinion with weighted value. A 2 nd opinion, validation letter from an independent 3 rd medical party, is the court approved method to meet evidentiary burdens of proof to win the Greater Weight of the evidence challenges. 83

84 Validate The Case To: 1. Eliminate varying opinions 2. Establish preponderance meeting court accepted evidentiary burdens of proof 3. Win the Greater Weight of the Evidence challenges 4. Prevent Unfair Settlements 84

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90 Simply Stated Improving Settlement Claim Value Is A Matter Of; understanding and sequencing the Medical Decision Points with the Administrative, Economic and Legal Decision Points to interface with the insurance company software s to input value into Colossus. And winning the Great Weight Challenges! 90

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97 LEVERAGING DEMAND LETTERS TO OBTAIN HIGH SETTLEMENTS Ronald J. Cook, ESQ Willoughby Stuart, Bening & Cook 50 W. San Fernando, Suite 400 San Jose, CA (fax)

98 INTRODUCTION TYPICAL CASE Great Facts Serious Injury Clear (or close to it) Liability Good Plaintiff Inadequate Insurance Coverage 98

99 WHAT ARE THE LIMITS? Policy limits are confidential. (e.g., Ins. Code ; Griffith v. State Farm (1991) 230 Cal.App.3d 59, 65-68) --BUT SEE Boicourt v. Amex Assurance Co. (2000) 78 Cal.App.4th 1390 No less an authority on insurance law than John Alan Appleman declared 40 years ago that a liability insurer is playing with fire when it refuses to disclose policy limits. Such a refusal cuts off the possibility of receiving an offer within the policy limits. 99

100 WHAT ARE THE LIMITS? (cont.) Ask nicely-many carriers volunteer information Limits are more than adequate Umbrella Coverage Personal Counsel Cooperation Use Boicourt to discover limits: Ins. Co. obligated to seek insured s permission to disclose Refusal to ask is bad faith since settlement is impossible Send letter citing Boicourt and instructing carrier to forward a copy to the insured If insured refuses is that good news? 100

101 3 rd PARTY POLICY LIMIT DEMAND Adverse carrier refuses to pay policy limit Judgment in excess of limit exposes insured to personal liability Plaintiff can file direct action to collect If carrier acted unreasonably, owes full amount, not policy limit. Assignment from insured for bad faith 101

102 UM/UIM First party relationship-duty to Settle/Negotiate Better to chase UIM or an Open Limit? Must Exhaust Limits to trigger UIM UM/UIM Arbitration to Prove Liability/Damages Cannot Open Limit for Refusing to Settle Demand Letter Can Set Up Bad Faith Case Carrier is not Immune From Bad Faith 102

103 UM/UIM-Bad Faith Maslo v. Ameriprise Auto & Home Ins. (2014) 227 Cal.App.4 th 626 Insured demanded UM policy limit ($250K) and supported it with back-up documents Carrier offered $0 and demanded Arbitration Arbitrator awarded $164, Bad Faith Case Followed HELD: No Offer = Bad Faith 103

104 What Does Carrier Know? Independent Investigation Police Report Medical Records Liability Discovery (in litigated cases) How old is claim Educate, Educate, Educate! 104

105 What if 3 rd Party Case Isn t Worth Policy Limit? No bad faith unless verdict exceeds limit Adverse driver deserves their day in court Force them to make smart decision (settle) Allowed to be stubborn and stupid Create risk of excess verdict in letter Take a shot at opening limit 105

106 Demand (Set Up) Letter Is The Time Right? What if You Don t Know the Limit? Demand Right Number or the Limit, Whichever is Less Personal Assets of Defendant Client Authority (Will they take the limit?) 106

107 Demand (Set Up) Letter plaintiffmagazine.com/mar11/cook_the- letter-perfect... Crucial Elements: 1. Factual Support (To run up chain) 2. Liability 3. All special damages supported 4. Verdict Value-Jury Verdict Reports 5. Deadline (Be reasonable!) a. One day is enough if on eve of trial-(kelly v. British Commercial Ins. Co. (1963) 221 Cal.App. 2d 554 b. What will a judge/jury think? 107

108 Demand (Set Up) Letter 6. Tell Ins. Co. Everything it Needs to Know To Decide 7. Full and Final Release of All Claims 8. Husband and Wife (Loss of Consortium) 9. Medical Lien (Most Common Omission) 10. Demand Will Not Be Repeated After Deadline a. No Duty to Repeat Offer 11. Offer to Grant Extension For Good Reason a. Must specify why, how long and what will be done 108

109 Demand (Set Up) Letter 12. Definite Enough to Be Accepted a. No contingencies b. Asset Declaration? 13. Demand Letter Doesn t Have to Be Letter Perfect If the insurer fails to accept the settlement offer without seeking clarification of its terms, it cannot later avoid the consequences by claiming the offer was uncertain. (Betts v. Allstate Ins.Co. (1984) 154 Cal.App. 3d 688, 708). 109

110 Demand (Set Up) Letter The law does not require claimants against insureds to begin settlement overtures with letter perfect offers to which insurers need only respond yes or no. An insurer s duty of good faith would be trifling if it did not require an insurer to explore the details of a settlement offer that could prove extremely beneficial to its insured [evidence supports the conclusion that the insurance company ignored the offer, as a calculated gamble on which only its insured could lose. ]. (Allen v. Allstate Ins.Co.,656 F.2d 487, 490 (9 th Cir. 1981) No duty To Remind Carrier of Deadline 110

111 Extra Time? Make Them Tell You Why What s Missing? Would it Look Unreasonable to Deny Refuse and Later Deemed Unreasonable, Policy Isn t Open 111

112 Ins. Co. Standards Carrier Required to Look for Opportunity to Settle Within Limits Coverage Doubts Cannot Justify Rejection...in determining whether a settlement offer is reasonable, an insurer may not consider the issue of coverage.[citation]. Rather, [t]he only permissible consideration in evaluating the reasonableness of the settlement offer... is whether, in light of the victim s injuries and probable liability of the insured, the ultimate judgment is likely to exceed the amount of the settlement offer. (Blue Ridge Ins. Co. v. Jacobson (2001) 25 Cal. 4 th 489, 498) 112

113 Ins. Co. Standards Reasonable Conduct Defined: acceptance of a settlement offer within an insurer s policy limits will be the most reasonable manner of disposing of a claim whenever it is likely that the judgment against the insured will exceed policy limits. (Isaacson v. Calif. Ins. Guar. Assn. (1988) 44 Cal.3d 775, 792, fn12, citing Johannsen v. CSAA (1975) 15 Cal.3d 9, 16). Did Carrier Notify Insured of Chance to Settle Before Rejection (Insured Has Right to Pay Demand or Make up Difference)? 113

114 Ins. Co. Standards THE BOTTOM LINE: (best quote ) An insurer s failure to accept an offer of a reasonable settlement within policy limits when there is great risk of liability in excess of the policy limits may in the ordinary course of things, result in a judgment against the insured beyond the policy limits. [citation]. As such, the insured has a legitimate right to expect that the method of settlement within policy limits will be used to protect him or her from liability. [citation]. Since liability beyond policy limits constitutes damages that arise naturally from a liability insurer s failure to accept a reasonable settlement offer, such damages are foreseeable within the meaning of Civil Code section (Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, ). 114

115 Rejection: Good News/Bad News Is the Policy Really Open? Second Lawsuit After Verdict Jury Question: What Would a Reasonable Carrier Have Done? 115

116 CONCLUSION Should You Have Any Further Questions Please Feel Free to Contact Me: RONALD J. COOK WILLOUGHBY, STUART BENING 50 W. SAN FERNANDO ST., #400 SAN JOSE, CA

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