Initiatives

Initiative One

The insurance company should wait 30 days, the same as a lawyer.

Indiana already has a 30 day rule for this exact situation. It applies to lawyers.

Rule 7.3(b)(3) of the Indiana Rules of Professional Conduct forbids a lawyer from soliciting anyone about a personal injury or wrongful death claim "unless the accident or disaster occurred more than 30 days prior to the initiation of the solicitation." The commentary to the rule gives the reason in the rule's own words. The restriction is "reasonably required by the sensitized state of the potential clients, who may be either injured or grieving over the loss of a family member."

We think that rule is right, and we follow it. A person in the first weeks after a serious crash is not in a position to weigh a decision that will shape the next two years of their life, and nobody should be asking them to.

Note what the rule is not about. It is not about advertising. A billboard is allowed on day one, and so is a search ad. What is barred is a lawyer contacting a particular person about their own accident.

Rule 7.3 does not reach the insurance company. It opens with the words "A lawyer."

So the adjuster can reach that same person in that same window. Can ask for a recorded statement before anyone knows whether the injury is permanent. Can put a settlement number in front of someone who is still being treated, at the one moment they are least able to evaluate it and most likely to need the money. The person the rule describes as too sensitized to choose a lawyer spends those thirty days talking to the one party on the other side of their claim, with nobody on their own side of the call.

That asymmetry is not an accident of drafting. The lawyer rule was written because Indiana recognized that a recently injured person is vulnerable to being approached. That reasoning does not stop being true when the person doing the approaching works for the other side.

The property damage claim should keep moving, and this is not a small carve-out. A vehicle gets repaired, replaced or declared a total loss. People need to get to work and take their kids to school. Nothing about resolving that requires anyone to wait, and delaying it would punish the person this is meant to protect.

Indiana law already treats the two as separable. IC 27-4-1-4.5 lists the state's unfair claim settlement practices, and item (13) makes it unfair to hold up prompt settlement under one portion of coverage "in order to influence settlements under other portions." The statute already recognizes both that these are different portions of coverage and that one can be used as leverage over the other. The carve-out follows a line Indiana has already drawn.

One note on the state of our own homework, because we would rather say it than have it found. We have read Rule 7.3 and its commentary, and all sixteen enumerated unfair claim settlement practices in IC 27-4-1-4.5. We have not read every Department of Insurance regulation in Title 760 of the Indiana Administrative Code. If a timing restriction lives there, we have not seen it, and we would want to know.

And a real question, asked as a question. We have looked for the reasoning behind stopping this protection at one side of the case, and we have not found it. If it exists we would like to read it.

Enforcement, which the first version of this page did not address

A rule with no enforcement design is a preference, not a proposal. So here is where this one would have to live, and the problem it runs into.

The natural home is IC 27-4-1-4.5, the list of unfair claim settlement practices, because that is already where Indiana regulates how an insurer handles a claim. Putting a timing restriction on that list would place it inside machinery that exists: IC 27-4-1-5.6 lets a person complain to the insurance commissioner, requires the commissioner to act within ten business days, and requires the insurer to report back within twenty.

Two limits, and both are real.

The remedy is regulatory, not personal. IC 27-4-1-18 says the article "does not create a cause of action" other than an action by the commissioner to enforce an order, or an appeal from one. An injured person who was worked on day two would have no claim of their own. They would have a complaint to file with a regulator.

And that complaint may not be theirs to file. IC 27-4-1-5.6 runs to a person who "has submitted a claim to an insurer under an insurance policy," and the same section requires insurers to notify their own policyholders of the remedy. Read plainly, it is built for the policyholder. The person this initiative protects is usually a third party, making a claim against somebody else's insurer. So the only enforcement route that exists may not be open to the person the rule is for. That is our reading of the text and not a holding, and we would be glad to be shown wrong about it.

We would rather name that than have it found. It means this is not one sentence added to a list. Either the complaint right has to reach third-party claimants, or the restriction needs a different home.

Initiative Two

The declarations page, before a lawsuit is filed.

Indiana Trial Rule 26(B)(2) says a party may obtain discovery of "the existence and contents of any insurance agreement" under which an insurer may be liable to satisfy a judgment. That is a broad right and it is the correct rule.

It has one limit, and the limit is doing all the work. The right belongs to a party, in an action. It does not exist until a lawsuit has been filed.

So an injured person deciding whether to sue at all cannot find out whether there is anything to sue for. Not the limits. Not whether a policy exists. The only reliable way to make an insurer answer the question is to file the lawsuit and serve discovery, which means filing the case is how you learn whether the case was worth filing.

That sequence is backwards, and it is expensive for everyone in it.

Cases get filed that both sides would have resolved if either could see the number. Cases get filed with nothing behind them, and a court spends a year discovering what the insurer knew on the first day. Families sit through litigation to reach a fact that was never in dispute. And a defendant who was never going to be worth suing gets sued anyway, because nobody could tell in advance.

This is not a novel idea and it is not untested. Other states already require it, and that is the whole point.

Florida. Fla. Stat. section 627.4137 requires an insurer who does or may provide liability coverage to give the claimant, within 30 days of a written request, a sworn statement setting out the name of the insurer, the name of each insured, the limits of the liability coverage, any coverage defense the insurer believes it has, and a copy of the policy. It reaches excess and umbrella coverage as well, and the statement has to be corrected as soon as the insurer learns anything that changes it.

Georgia. O.C.G.A. section 33-3-28 requires the insurer, the insureds and the limits within 60 days of a sworn written request, and it names the document directly: the insurer "may provide a copy of the declaration page of each such policy in lieu of providing such information." Georgia also protects the insurer, saying the disclosure waives no coverage defense and is not admissible in evidence unless it would be anyway.

That last point matters, because the objection to this proposal is usually that disclosure gives something away. Georgia answered it by writing the protection into the statute itself. Indiana has already answered it too: Trial Rule 26(B)(2) provides that information concerning an insurance agreement is not admissible in evidence at trial by reason of having been disclosed. The protection is not a new idea here. It is already sitting in the same Indiana rule that requires disclosure once a suit exists.

Which leaves one honest question. If the information is going to be produced the moment a complaint is filed, and producing it costs the insurer no coverage defense and no admissibility problem, what exactly is served by making someone file the complaint first?

Why a firm this small is publishing this

Because neither of these is theoretical from where we sit, and because a position is worth more written down than repeated at a bar function.

We do not have a lobbyist and we are not pretending otherwise. What we have is a position, the rules it stands on, and a page that anyone can send to someone able to do something about it.

If you are an Indiana lawyer, a legislator, a claims professional who thinks we have this wrong, or someone who has been on the receiving end of either problem, the email below reaches Matt directly.