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What I Learned from a Recently Settled Case

Modesett Williams - Monday, June 20, 2016

We recently settled a business dispute involving claims for breach of contract, breach of fiduciary duty and fraud. We quickly realized that an insurance policy would likely cover the claims, but its limits were about one-third of our damages. It was also a "declining" policy, meaning the limits declined as attorney's fees were paid. The defendants were likely judgment proof.

The plan was straight-forward: gather all of the evidence we could find and give it to the defendants. Within 30 days of the case being filed, we had our persons with knowledge of facts, a decent (but not perfect) damage model and most of the facts understood. We sent responses to request for disclosure before a request was sent. We produced about 1000 pages of documents we had identified. We answered interrogatories within a few days. Then we spent hours interviewing the important witnesses and got detailed affidavits from two of them.

Then we sent a detailed Stowers demand for policy limits. Rejecting our demand would mean the insurance company risked being on the hook for the entirety of a judgment. The time for the demand expired. We gave defendants an extension. Then defendants wanted to mediate and we agreed. Then we filed a summary judgment motion on one of our claims - as a plaintiff. I had even written a preliminary opening statement to test the logic of our position.

We prepared mightily for mediation and had a great presentation. Nevertheless, mediation was unproductive because we argued over what the facts were, rather than what the numbers should be. We adjourned the mediation. Then we provided additional declarations, designated experts on damages and liability issues, which were all issues the defendants had with our case. Having fixed the "problems" with our case, our mediator went to work. We settled for policy limits.

Insurance makes a case much easier to settle. It is designed to pay claims. It also removes some of the emotion defendants feel when they get sued. It also changes your audience. Insurance companies like to "build" a file, so the more information you give them, the easier it is to justify payment of significant sum. There is nothing more intimidating to a defendant than having a plaintiff with all the facts available and understood early in the case. PowerPoint presentations are helpful, but not as big a deal as you think they will be. The Stowers doctrine is a powerful bargaining chip, but has its limitations.

Soaring Long-Term Health Costs

Modesett Williams - Wednesday, April 15, 2015

In the 1980s, private insurance providers preached that purchasing insurance policies to cover long-term health care would financially prepare Americans for elderly life. However, these providers offered faulty advice: the insurance policies they offered have proved to be more expensive than ever anticipated. 

About 30 years ago, the long-term care market looked to be an attractive one, and many insurance providers were eager to get in the business. The industry made predictions about American lifespan, health care expenses and interest rates, all of which turned out to be skewed. The average life expectancy in the United States is the highest it has ever been: 79 years old. This life expectancy suggest that Americans are living longer than ever anticipated, meaning more individuals will live in nursing homes and perhaps spend longer periods of time there. In addition, "the rate for staying at a nursing home has gone up an average of 4 percent every year for the past five years. The 2014, the median bill for a shared room topped $6,000 a month," financial figures that were highly unanticipated by insurance providers. Lastly, the industry predicted high interest rates and the market has provided much lower rates than anticipated.

The long-term-care-policies that the private insurance companies offered have proven unprofitable due to the previously discussed financial figures. As a result, these insurance companies are either exiting the market or substantially raising their prices. As fewer private insurance options become available, analysts predict that individuals will turn to Medicaid for help, which could significantly constrain federal and state budgets. Thus, as the private sector reduces its presence in the long-term care insurance market, the United States' government will be forced to take action to properly care for the elderly. 

Read the full article: www.mysanantonio.com/business/health-care/article/high-nursing-home-bills-squeeze-insurers-driving-6166975.php

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