Latest / The Art of Adjusting® Podcast / Episode #102 - The Million-Dollar File Starts Day One

Transcript

Episode #102 - The Million-Dollar File Starts Day One · The Art of Adjusting® Podcast

• 0:00
  William Auten: Hey everyone, welcome to the Art of Adjusting podcast.
• 0:03
  William Auten: Today is going to be a little bit different because it's going to be just me solo today.
• 0:07
  William Auten: Chantel has uh some some life things going on right now and she's unable to join us.
• 0:13
  William Auten: So uh we are going to do this solo from time to time.
• 0:16
  William Auten: If you are out there as a past guest or if you want to be a current guest uh and help uh help carry the the load here while we continue to publish these episodes, please reach out to me on LinkedIn and uh we'll see if we can get you scheduled uh for one of our several episodes that we have coming up for the remainder of 2026.
• 0:37
  William Auten: So uh wishing all the best to Chantel and uh hope to see her back soon.
• 0:43
  William Auten: But uh today, today we're gonna talk about the million-dollar file and how it starts on day one.
• 0:50
  William Auten: And what this episode is going to talk about is what you do early on in an investigation that can make or break the that million-dollar file.
• 1:01
  William Auten: Um we're talking primarily about um evidence and saving evidence.
• 1:08
  William Auten: Uh now we at ACM here we have uh facilities where we can store evidence, and we have a lot of evidence in storage right now, and we retain that so that it can be inspected by all the involved parties to include potential third-party uh contributors to the incident as well as the claimant or their attorney and their experts, so everybody can have a look at what may be blamed as part of a cause.
• 1:35
  William Auten: So evidence retention is is very a very key component to the the million-dollar claim.
• 1:42
  William Auten: And uh retaining that evidence is often important to do as soon as possible, as soon as you have notice of the claim or as soon as you do your inspection, if you identify something that should be retained as evidence, it's important to get that into evidence right away.
• 1:57
  William Auten: Uh evidence spoliation is an important thing.
• 2:01
  William Auten: It can, if if you're accused of evidence spoliation, it means you've either through negligence or uh purposefully you've uh destroyed evidence, uh which would prevent all parties from really finding out how that evidence may have played a role in what happened.
• 2:19
  William Auten: Um we've had cases where an individual fell on a ladder and we uh we moved to uh inspect that ladder, and uh the claimant retained that ladder himself and eventually destroyed it.
• 2:34
  William Auten: Uh and you know that's a problem, it's a problem for his case because you know we had some testimony from some witnesses that that ladder was defective, and uh it kind of makes sense that he destroyed it, but it did really harm his case.
• 2:49
  William Auten: So another thing you'll want to do is uh when you uh when you identify a piece of evidence that uh may be involved in the claim somehow, um you want to find out who owns it first of all because you may not have the right to retain it.
• 3:04
  William Auten: You may have to get permission from the owner.
• 3:08
  William Auten: Um as an example, if you have a defective piece of equipment in a house, for example, um whether it's an appliance or or whatever, um, but you don't own the house, you don't really have a right to take that as evidence unless you get written permission.
• 3:26
  William Auten: And um and oftentimes if there's a third party involved and that third party does own the item that you're going to save as evidence, then uh they're probably going to be retaining that, or their attorneys and their experts will be retaining that.
• 3:44
  William Auten: So uh everyone's gonna have to come to an agreement as to how it will be collected and where it will be stored, and um uh what availability there may be to conduct maybe a lab inspection for that piece of evidence.
• 4:00
  William Auten: When um when evidence is collected, when you identify something that should be collected because it is pertinent to the claim and and may have a bearing on the outcome of any decisions, it's important to maintain the proper documentation for that evidence.
• 4:18
  William Auten: We call that a chain of custody form, and what that will do is document who had possession of the item to begin with, who they gave it to and when they gave it to them, and what that person did with it once it was given to them.
• 4:34
  William Auten: So our chain of custody forms, for example, the original property owner would sign that and uh the form would show that it went from that property owner to one of our team members, and then um one of our team members will have taken it to the storage uh facility and the chain of custody form will document that as well, and we keep that form with the evidence so it's usually taped to it or uh we shrink wrap a lot of um a lot of our evidence and we we wrap up the form right in there so it's always with it.
• 5:10
  William Auten: Um, so that if it needs to be made available for um some experts or some some other party to inspect, uh there will be evidence of who of where that came where the evidence came from, um who it went to and how it got to where it is today.
• 5:30
  William Auten: And if it ever gets moved from that storage facility while the case is still open, um the chain of custody form needs to reflect that history as well.
• 5:41
  William Auten: Um so yeah, so uh evidence isn't always in physical form.
• 5:48
  William Auten: Um, a lot of audio or video evidence is important too, um, even photographic evidence.
• 5:55
  William Auten: Sometimes there will be still photographs of a condition or a situation or even the presence of somebody at a certain time.
• 6:05
  William Auten: Uh digital photographs have metadata and uh we call it exif data, and that that data tells us uh the date and the time it was taken.
• 6:15
  William Auten: If it was taken with a cell phone or a camera equipped with GPS, it's going to give you the exact location of the camera at the time the photo was taken.
• 6:24
  William Auten: So all those things can be important bits of evidence.
• 6:28
  William Auten: And sometimes photographs get transferred via email or they their formatting gets changed when they're saved.
• 6:37
  William Auten: And sometimes that metadata cannot be extracted from the photograph.
• 6:42
  William Auten: We've hired experts in the past who um who are who are sometimes able to to pull that data from files.
• 6:51
  William Auten: Um so don't give up hope if you find a photograph that doesn't appear to have any of the metadata.
• 6:58
  William Auten: It may be gone for sure, but there are experts who can uh figure out a way uh to extract that data if it is if it is really needed.
• 7:10
  William Auten: Um and there are also experts that can tell whether photographs have been, uh photographs or video have been altered in any way to change the appearance of some condition uh to make it worse or look worse or look better than it actually is.
• 7:26
  William Auten: Um so that's that's an another important thing about digital evidence is that unfortunately it can be altered fairly easily.
• 7:34
  William Auten: So we want to prevent that as much as we can.
• 7:37
  William Auten: And if you ever suspect that it has been altered, uh that is something that you can retain an expert for, and they can take a look at that that evidence and tell you whether it's been manipulated in some way.
• 7:55
  William Auten: Now sometimes this evidence, whatever it might be, uh whether it is a physical piece of evidence or a uh uh digital piece of evidence, um, that evidence could be used not just to figure out whose fault the claim was, but it also may be used to um determine coverage.
• 8:16
  William Auten: One example I would give you is the use of um a UTV or an ETV.
• 8:23
  William Auten: If um if that vehicle has been uh sold or destroyed or gotten rid of to where we can't inspect it anymore, that makes it difficult to make a coverage decision because without the uh the exact make and model and um the the make and the model of the unit, uh it may qualify as a motor vehicle that might be subject to certain exclusions under a general liability policy.
• 8:53
  William Auten: So that's just one example of many where the actual physical item really needs to be seen and evaluated in order for a coverage decision to be made.
• 9:06
  William Auten: So if you've got a situation where you need that evidence and you've been told that it is no longer available because it's either been destroyed or sold or whatever, uh that can be a problem.
• 9:19
  William Auten: Uh so it's it's that's why um early investigation is so important, so that you can um you can get to that um that item right away.
• 9:29
  William Auten: Um you can retain it if if at all practical.
• 9:32
  William Auten: And let's face it, sometimes it's not practical to save every item uh as evidence, um, but you'd be surprised at some of the things that we've been able to retain and store as part of evidence.
• 9:46
  William Auten: Uh things as large as vehicles, uh things as large as uh tall trees we've been able to retain as evidence.
• 9:53
  William Auten: So um uh don't don't ever second guess what can or should be uh retained as evidence.
• 10:02
  William Auten: And if you're not sure, uh review it with counsel because they will have a very good sense of um what should be retained, and um you know you can hire a firm like ACM here to to actually retain that evidence for you and make sure the chain of custody is preserved uh so that um your defenses can be preserved as well.
• 10:25
  William Auten: So common early mistakes.
• 10:30
  William Auten: So one mistake that I I guess I would see is probably going to sound obvious, but it's just a failure to recognize uh that you have evidence that should be saved.
• 10:42
  William Auten: Um we had a case uh several years ago involving a piece of equipment that injured somebody, and um it was being held for rental by the insured, and the accident happened, he reported it to his insurance company, and uh we started the investigation.
• 11:02
  William Auten: And the day before we went out to um meet him for his statement, uh he returned the unit to the the rental company, and then the rental company uh transferred it to another facility because one of their other facilities needed it, and it didn't take very long for us to discover that the thing has just been mixed in with other equipment, we don't know which one actually was involved in the accident.
• 11:29
  William Auten: That's a problem.
• 11:30
  William Auten: So again, it's it's not just important to get to the stuff early, but it's also important to communicate your intentions with all the involved parties.
• 11:42
  William Auten: Um, because you know, you might be dealing with an insured, chances are you're dealing with a policy holder who's never dealt with a claim before in their life.
• 11:50
  William Auten: They they really don't know anything about the litigation process, they don't know anything about retaining evidence and why that might be important.
• 11:57
  William Auten: So, you know, one of our jobs as adjusters in this field is to educate the people around us that are involved in our claims and you know let them know why we need to go through the trouble of you know picking up this heavy piece of equipment and and carting it off to a storage facility somewhere.
• 12:20
  William Auten: Um you have to be able to explain to them uh that the failure to save this could could harm the case.
• 12:28
  William Auten: And if there are policy limits at play, um you're putting them at risk too of an excess verdict, and um they need to understand why it's so important to be able to retain this evidence uh whenever whenever it's available.
• 12:44
  William Auten: So I think that's just about all I have to say on on evidence here.
• 12:50
  William Auten: Of course, you know, without Chantal, we don't have the back and forth that usually causes us to go a little more longer than than we did today.
• 12:58
  William Auten: Uh but um it's been a while since I did a solo episode, so bear with me and uh uh we will we will forge ahead.
• 13:07
  William Auten: And again, if any of you out there um who are watching and listening to these podcasts have any interest in joining me uh to discuss claim issues, um insurance issues, risk management issues, uh please hop on board, give me a give me a shout on LinkedIn, and uh be glad to have you on as a guest co host uh while we wait for Chantel.
• 13:32
  William Auten: So thanks again, everybody.
• 13:34
  William Auten: Have a great day.
• 13:35
  William Auten: Bye bye.