At last: A tv show about insurance adjusters and superheroes!

I cannot wait for Powerless, a new tv show about adjusting losses caused by superheroes. 

                                                                                                                                                                                    

Another view

Randy Maniloff's  article on Bridge of Spies in Coverage Opinions is way better than mine.  Of course, Maniloff is addressing the actual facts -- James Donovan, the person on whom the Tom Hanks character was based in the movie, argued in court that a multi-vehicle accident is one occurrence.  Tom Hanks argued in a bar that plaintiffs' counsel should accept a low settlement offer because of that then-undetermined question of law. 

(Maniloff doesn't mention it, but Donovan also argued in court that the Russian spy he defended should not be executed because the spy might be useful in a trade if the USSR ever captured an American spy.  In the movie Tom Hanks argued it as an ex parte communication in the judge's living room.)

Incompetent insurance defense lawyers make good spies, apparently

I just saw Bridge of Spies, the much-praised Steven Spielberg movie in which Tom Hanks plays an insurance defense lawyer who ends up negotiating a spy-swap with the Soviet Union. 

In Hanks' first scene in the movie, he demonstrates an incompetence that should get a real lawyer fired.

Hanks is negotiating settlement of a claim.  Apparently the sticking point is how many occurrences there are in a multi-vehicle crash for the purposes of a per occurrence limit.  Typically the starting point for this type of discussion would be the policy definition, followed by legal research on both sides.  If the issue is still open for debate, there might be some analogizing.  Hanks' character, perhaps anticipating his future role as a bit player in the cold war, decided to do the equivalent of Khrushchev banging a shoe on the table at the United Nations. 

Sure, that'll work.  (Not.)

In the same scene, Hanks says repeatedly that he does not represent the tortfeasor, but the insurance company.  Huh?  Any second year insurance defense associate should have a thorough understanding of the tripartite relationship--a cornerstone of an insurer's duty to defend that  says that an insurance defense lawyer fully represents the insured in all cases assigned to that attorney.  It's true that the attorney also fully represents the insurer -- that's the third "partite" in tripartite -- but generally that only comes into play as a reason that insurance defense counsel can't advise on coverage issues, or when there is a possibility of an excess judgment.

The response of any competent personal injury attorney to Hanks' negotiation strategy:  See you at trial.

Which brings us to the courtroom scenes in the movie.  During them I kept forgetting I was watching Tom Hanks in a Serious Movie About Serious Matters and thought I was watching James Spader in Boston Legal.  Same apparently senile crazy old coot judge who made rulings he admitted from the bench were wrong but he made them because he felt like it.  Same utterly inappropriate over-the-top goading of opposing counsel.  Same ex parte communications with the judge that could get both attorney and judge disbarred.  

Spoiler alert:  Hanks succeeds in negotiating the hostage exchange.  He uses the same tactics he uses in his insurance defense negotiations:  No research whatsoever and a lot of bluster.  The fact that he does succeed is a testament not so much to his skill as to the fact that when both parties really want a settlement , and what they are each willing to give is within the other side's settlement parameters,  a settlement will generally be reached.  That doesn't take heroics; it takes a telephone call. 

Insurance coverage for a Jurassic World

Vulture has a good article about it here. 

A foray into pop culture--and an explanation of negotiation

I recently saw Avatar, a movie about what happens when people are too caught up in their preconceptions to bother to negotiate.

In Avatar a marine goes to some far-away planet and infiltrates the indigenous people whose culture is the usual Hollywood image of the noble savage, more or less naked, unspoiled by consumer goods, happy to be in sync with nature and to ride their pet pteranodons. The evil earthlings have gone to the planet to exploit its natural resource, some weird rock. The biggest rock cache is under the giant tree where the Na'vi live and frolic.

Spoiler alert

The marine is accepted by the Na'vi and goes native. He tells the evil colonel and his evil capitalist boss that Earth has nothing the Na'vi want in exchange for leaving their tree. So the evil ones conclude that the only solution is to blow up the tree.

SLOW DOWN.

This is where the marine should go to his adopted people and say, "Guess what--the sky people want some rocks that are under the tree. Do you mind if they take them?"

The Na'vi might say, "Yes, we mind terribly and you'll have to blow up our tree to get our rocks." Then the movie would continue as if this interruption had never occurred.

Or, the Na'vi might say, "Rocks? Sure, we don't care, as long as you find an alternative to strip-mining. You know in that original ending to the movie, how you prayed to mother earth and she had all the animals help you kill a lot of people? Why don't you pray to her to have the rocks put in a neat pile instead?"

Or, they might say, "Yes but only if you give us plastic beads, wireless internet connection, a promise never to darken our treestep again, and/or veto power at the Security Council of the United Federation of Planets."

Parties negotiating over insurance often make the same mistake: They assume they know what the other side wants without bothering to ask. Typically, the insurer/adjuster/insurance defense attorney overlooks the fact that the claimant might be seeking something other than just money, or at least in addition to just money: maybe an apology from the tortfeasor, or an acknowledgement that their life has been diminished by the accident, or a show of respect. Claimants tend to overlook the fact that in the long run (and often, but not always, the short run) the insurance company cares most about money, in the form of keeping overall liability and defense costs down. Between the claimant and the insurer there is often a lot of unrealized common ground.

Blowing up the tree is not always necessary. Sometimes you just have to ask for what you want.