Scope of Pre-Arbitration Discovery

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Scope of Pre-Arbitration Discovery

Most policies require claimants to provide statements under oath, examinations under oath, physical examinations, authorizations, medical records and reports. In addition, many court decisions have upheld the requirement to provide tax returns for self-employed individuals and other reasonable discovery. The best practice is to obtain complete discovery. The claimant’s failure to provide the information requested may violate the claimant’s obligations under the policy, and give the court grounds to dismiss the claim, as cooperation with the insurance policy requirements for disclosure is typically a condition precedent to recovery.

The best practice is to demand discovery early. A note of caution: while the claim handler is quite capable of requesting discovery documents, and need not assign defense counsel for this purpose, the claim handler must undertake investigation of the underlying facts, in addition to following up for compliance with requests by the claimant. In addition, the claim handler must review the claim file on a regular basis to make sure that claimant is providing all requested documents and medical records. Importantly, the claim handler should prepare further correspondence demanding outstanding documents if there has been non-compliance by the claimant.

The claim handler must also follow to schedule an Examination Under Oath when enough information has been obtained to do so. Because of the importance of demanding discovery early and the need to monitor the claim closely, many claim handlers choose to assign defense counsel upon first notice of a UM/UIM claim.

The UM/UIM claim that appears to be low exposure at the time of first notice may be the most dangerous. If the claim handler isn’t paying close attention and the claimant’s physical condition deteriorates, it may become a high exposure claim. The failure to adequately monitor the claims file and the failure to demand appropriate discovery may give the claimant unfair advantage, if a court finds discovery has been waived. It is more difficult to obtain a fair result for the UM/UIM insurer if examinations under oath (EUOs) and independent medical examinations (IMEs) are found to have been waived. The result may be that the testimony of the claimant and claimant’s medical witnesses is the only proof heard by an arbitrator or jury.

For these reasons, all UM/UIM claims should be treated as being potentially high exposure unless proven otherwise.

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