Articles Posted in Researching Experts

In All Should Use Greater Care Handling Underwriting Information, insurance expert witness Akos Swierkiewicz writes:

In some instances, there may be an appearance of misrepresentation or omission due to the failure by the insurer to clarify responses to application questions. When presented with ambiguous or conflicting information, it behooves insurers to seek clarification prior to binding coverage or issuing the policy. For example, when an applicant found an application question inapplicable to its business, he amended it in a good faith attempt to provide accurate and complete information, and the insurer issued the policy without seeking clarifications. When a claim occurred, the insurer denied it, citing the answer to the modified question as evidence of misrepresentation.

In certain circumstances only litigation can resolve allegations of misrepresentation or omission. However, the exercise of greater care in obtaining and preparing underwriting information by applicants or brokers, and clarification of ambiguous information by insurers can substantially reduce the number of cases requiring litigation and inevitable delays and costs.

Medical expert witness and Chief Editor of web-based emedicine Dr. Erik Schraga would like legal professionals and experts to know that emedicine offers continually updated clinical reference information which may prove useful in cases they are working on. The following excerpt on cardiology provides information on atrial fibrillation medicolegal pitfalls.

Medicolegal Pitfalls

* Proper anticoagulation is extremely important in both paroxysmal and persistent atrial fibrillation.

In All Should Use Greater Care Handling Underwriting Information, insurance customs expert witness Akos Swierkiewicz writes:

The need for greater care with handling of underwriting information is not limited to applicants and brokers. Insurers should ask all pertinent questions in the application form because, in many instances, the applicant may be aware of important underwriting information but does not disclose it simply because it was not asked.

Application questions should be limited to seeking factual information rather than eliciting the opinion or judgment of the applicant. For example, when the applicant answered “no” to a professional liability application question as to whether future claims were expected, based on the applicant’s opinion or judgment, the insurer concluded that the response was a misrepresentation or omission just because a claim did occur.

In All Should Use Greater Care Handling Underwriting Information, insurance practices expert witness Akos Swierkiewicz writes:

The following are examples of alleged misrepresentations or omissions involving litigation:

* the broker asked the applicant to sign a blank application form, completed and released it to the insurer without providing copy to the applicant;

In All Should Use Greater Care Handling Underwriting Information, insurance expert witness Akos Swierkiewicz writes:

State insurance laws generally allow the insurer to deny claims or rescind the policy for misrepresentation or omission, including concealment fact or incorrect statement, if:

* it was material either to the acceptance of the risk or to the hazard assumed by the insurer, or

On his website, aviation expert witness John Ogle, MD, MPH, FACEP, lists FAA medical questions regarding a pilot applicant’s medical history and information on how the FAA considers any problems with respect to flight safety. Here are13-24:

Medical History 13. Mental disorders of any sort; depression, anxiety, etc. (More…)

14. Substance dependence; or failed a drug test ever; or substance abuse or use of illegal substance in the last 2 years (More…)

In Product Experience or Expert Experience?, patent infringement expert witness James G. Rice writes:

Because patent litigation is one of the more complex areas of litigation, the expert witness is susceptible to making a critical mistake, for example, during a deposition. From my own experience, it appears that patent litigation is the foremost area of litigation in which technical issues can be strongly interwoven with legal issues. This can lead to the situation during a deposition where what may appear on the surface to be a relatively straight forward technical question can have critical underlying legal implications. I recall being asked during a deposition if a particular element of a claim was a “method.” The wording of the claim was not entirely clear on this issue and a less experienced witness might have simply answered “yes” and thus inadvertently have testified in effect that the claim was invalid. Although the attorney the expert is working with during preparation for the deposition may be excellent, it is difficult, if not almost impossible, to anticipate all of the avenues the opposing attorney may take during the course of a deposition. This makes it all the more important that the expert have strong experience in patent litigation.

In Product Experience or Expert Experience?, patents expert witness James G. Rice writes:

Quite often when I receive an inquiry from an attorney about a new case, the case deals with a product or device that involves a very specialized and narrow area of design and engineering. A typical example of such a device would be a vacuum cleaner. The attorney will state that they are looking for an expert who has specifically worked in this specific segment of industry in the design and engineering of vacuum cleaners. They often will then state that they are having a hard time locating such an expert. The problem of course is that in such a very specialized area, such individuals are not widely available and are also highly unlikely to be working in litigation support. Even further, should the attorney be fortunate enough to find such an individual, it is frequently the case that they are not be willing to participate in litigation support.

In All Should Use Greater Care Handling Underwriting Information, insurance customs expert witness Akos Swierkiewicz writes:

Misrepresentations or omissions primarily originate from negligence by the applicant or broker during the course of the obtaining underwriting information and completing the application.

One of the major functions of brokers is to obtain accurate and complete underwriting information, which requires their active involvement in the process of gathering, preparing and communicating such information to the insurers, rather than just being the conduit to pass information from applicants to insurers. Brokers should also take the initiative and explain major provisions or conditions of the policy to applicants to minimize negative surprises when a claim occurs.

In All Should Use Greater Care Handling Underwriting Information, insurance practices expert witness Akos Swierkiewicz writes:

One of the tenets of insurance law is that parties to an insurance policy are expected to deal with each other in utmost good faith. Applicants for insurance or their brokers must disclose all relevant underwriting information fully and accurately to prospective insurers. If the application contains any misrepresentation or omits information that could affect the underwriting decision of the insurer, the standard of utmost good faith is not met and the insurer may deny coverage for claims or rescind the policy.

Allegations about misrepresentation or omission usually surface in the course claim investigations by insurers. In many instances the ensuing litigation may result in denial of the claim or rescission of the policy. Even if misrepresentation or omission is not proven, litigation inevitably causes significant delays in claims adjustment and direct and indirect expenses to the parties.