Articles Posted in Expert Witness News

In Ethics & Fraud Investigation insurance expert witness Barry Zalma writes:

Ethical underwriters and claims persons should not use technicalities to reach a decision on a policy or a loss. Rather, the ethical underwriter or claims person must apply the facts to the issue raised and provide the indemnity promised. Similarly, the insured must also clearly, fairly, and completely advise the underwriter of all of the facts known, or that he should know, that would be material to the decision of the insurer to accept or reject the risk. The California Court of Appeal explained the situation as follows:

An insurance company is entitled to determine for itself what risks it will accept, and therefore to know all the facts relative to the applicant’s physical condition. It has the unquestioned right to select those whom it will insure and to rely upon him who would be insured for such information as it desires as a basis for its determination to the end that a wise discrimination may be exercised in selecting its risks. (Emphasis added) [Robinson v. Occidental Life Ins. Co. (1955) 131 Cal. App. 2d 581, 586 [281 P.2d 39].]

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA. and Anthony DiGreggario of Atlas Safety & Security Design, Inc. write on the assessment process.

Achieving the correct level of protection against site-based threats may be very expensive and is highly dependent on the nature of the protected assets and the threat against which they require protection. Determining what is required is a matter of managing the perceived risks. If the designer is to assist in providing protection in the design of the site, an assessment of the security requirements must be accomplished preferably before the design begins, but certainly no later than the beginning of the architectural programming phase. This assessment is the responsibility of the owner;

however, it is incumbent on the designer to assure that the nature of the security requirements is determined before the design begins. Failing to obtain a definitive answer will certainly result in design changes, delays, and cost increases to the owner and the architect if the owner “discovers” their security needs later in the design process.

In Ethics & Fraud Investigation insurance expert witness Barry Zalma writes:

Ethics is a process of systematically applying, using, defending and recommending concepts of right and wrong behavior. Ethical behavior is required of both parties to a contract of insurance for the system to work. Ethics is the essence of insurance. Insurance was created to spread risk from individuals to multitudes. Spreading the risk in a fair, ethical and honorable manner from one person to many is the basis upon which a system of insurance was founded. The insurance contract since modern insurance was first created was founded on the concept of Uberrimae Fidei. The phrase is used to express the principle that a contract must be made in perfect good faith, concealing nothing. In the case of insurance both the insured and the insurer must observe the most perfect good faith towards each other. Insurers and reinsurers are dependent on:

utmost good faith [which] may be viewed as a legal rule but also as a tradition honored by ceding insurers and reinsurers in their ongoing commercial relationships. [Unigard Security Insurance Co. v. North River Insurance Co., 4 F.3d 1049 (2nd Cir. 09/09/1993)]

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. start with a “Statement of the Problem.”

While architects have to design buildings that are fire resistant and be accessible to persons with disabilities, they don’t have to make buildings resistant to crime. Designing for fire resistance and accessibility means complying with building codes and industry standards. The purpose of building codes around the United States is the protection of the health, safety, and welfare of the building occupants. Thus, architects and designers need to design for the safety and security of the users of the environment. The architects of the future must design against threats of criminal behavior, workplace violence, and acts of terrorism as part of their commitment to designing buildings that protect the building users.

The first contact a person has with a particular architectural project is accessing the site to gain entry to a property or building. With the increasing threats to persons and property, from acts of terrorism, workplace violence, and street crime, the first and most important line of defense is securing the site perimeter and the careful placement of the building/s on the given site.

In Barry Zalma on Whether Premium Increases Are Due to Weather Changes, insurance expert witness Zalma writes:
“It is dangerous in most legal analyses to limit the conclusion to one factual issue. Underwriting insurance requires the analysis of multiple factual issues that can increase or decrease the potential for loss. The underwriter and the actuary want to cover those risks where the insurer can collect sufficient premiums to pay all losses that can be anticipated and to still have enough to make a profit for its stockholders. Insurers cannot allow hysteria over global warming to effect their decisions with regard to a particular risk. They must review all of the potential factors that can effect the risk so that a well run, well built structure, on land above sea level in New Orleans becomes a risk an insurer is willing to take for a reasonable premium while a home in Beverly Hills, well built on stable ground owned by a person who has suffered five fire losses in the last ten years and three theft losses in the last five years, becomes an unacceptable to a prudent underwriter.”

Accident investigation expert witness Steven Barsky is Principal of Marine Marketing and Consulting, a consulting business for the diving and marine-related industries. In Analysis of a Diving Accident: Death of a Diver, the expert witness writes on lessons to be learned for diving companies:

During his deposition, the head of the diving company admitted that although his company was a member of the ADCI, he had only joined the association to obtain the insurance and believed that Consensus Standards were not something that applied to his operations. Unfortunately, he learned that these are the standards your company will be held to as a commercial diving contractor.

Never modify diving equipment that you have purchased from a manufacturer. Once a piece of gear is modified, the liability for that equipment becomes your responsibility. If you think there is a problem with a piece of gear and it needs modification, consult the manufacturer and get their response in writing before making any changes.

In Fire Experts and the Fire Code, fire expert witness Robert Rowe, Pyrocop, Inc., writes:

Fire codes are written by dedicated and knowledgeable fire experts who have, at one time or another during their fire service career have witnessed serious injury or the loss of life and property. So why does the U.S., the most powerful and technologically advanced nation in the world, still experience fire injuries, fire fatalities and pay out billions of dollars in insurance claims each year?

According to the 2007 fire statistics published by the National Fire Protection Association, U.S. fire departments responded to an estimated 1,557,500 fires. These fires resulted in 3,430 civilian fire fatalities, 17,675 civilian fire injuries and an estimated $14,639,000,000 in direct property loss. A civilian fire death occurred every 153 minutes and a civilian fire injury every 30 minutes. Home fires contributed 2,865, or 84%, of the civilian fire deaths.

Accident investigation expert witness Steven Barsky is Principal of Marine Marketing and Consulting, a consulting business for the diving and marine-related industries. In Analysis of a Diving Accident: Death of a Diver, the expert witness writes:

Nothing is more tragic than the death or serious injury of a diver, especially when the accident could have been easily prevented. In most diving accident cases where I have consulted, there are usually multiple mistakes made by both the diver and the dive team…

There are two important lessons to be learned by divers… First, and foremost, if the company you are working for does not adhere to all aspects of the ADCI Consensus Standards, you need to tactfully point out any deficiencies in their work practices and strive to get them corrected. If the company blatantly disregards the ADCI Consensus Standards and refuses to revise their practices, then you need to look for another place to work. With the shortage of divers today, nobody should have to put up with a company that does not follow safe practices.

In Planning a Fire Investigation, fire expert witness and Principal of Pyrocop Inc., Robert Rowe writes:

Whether you are a seasoned fire expert or just getting into the business, the need to properly plan your fire investigation is critical to its outcome. As quoted by Benjamin Franklin, commonly referred to as the “father of the fire service”, “By failing to prepare, you are preparing to fail.”

As a Fire expert, one must always carefully consider their resources prior to the commencement of his or her investigation and plan accordingly. Factors effecting the planning of a fire investigation may include but are not limited to, the complexity of the fire, size of the fire scene, cost associated with performing a thorough investigation and the need for additional assistance or other experts.

In Madoff Investor Alerts, securities expert witness Chris McConnell, AIFA, writes on fiduciary duty:

Breach of Fiduciary Duty (BFD) is pervasive in today’s volatile financial environment, primarily due to two elements: 1) investment pros have not been properly trained, if at all, in the standards of fiduciary responsibility, and 2) some are allowed to operate “under the radar” as “investment professionals” without proper credentials or licensing. Particularly troubling, the elderly, women and charities are often the targets of fraud and scams. Cultural and religious affinity scams, similar to Madoff’s targeting of Jewish charitable groups and donors, are on the rise due to feeder fund agents’ infiltration into social, religious and philanthropic causes; often with ulterior motives.

BFD (Breach of fiduciary duty) is often the root cause of investor’s losses “Any asset, at any time, in any type of account, at any financial institution, may become subject to fiduciary duty standards, including real estate, securities, futures, insurance policies (life and annuity), intellectual property; or even closely-held businesses and partnerships.”