Is My Insurance Carrier’s Expert Truly Independent?

In the world of first-party property litigation, insurers frequently retain engineers, construction consultants, contractors, and other professionals. While many experts perform their work objectively and in good faith, more and more often we see the same experts or consultants repeatedly retained by the same insurance carriers. Arguably, one wonders whether these ongoing relationships may create financial incentives —- whether conscious or subconscious — to produce opinions that align with the carriers’ expectations in order to secure future assignments.

An expert’s independence may reasonably be questioned when the expert, who is frequently retained on behalf of the insurance carrier, concludes there is no hail damage after the insurer’s own adjuster previously identified hail damage and issued payment. An expert’s independence may also be questioned when discovery reveals reports were edited and changed for a carrier-favored outlook. Although experts and adjusters may reach different conclusions, such a significant departure from the carrier’s initial assessment, or revisions to an initial report that completely alter the end opinion, raise legitimate questions about whether the opinion was based solely on evidence or influenced by other considerations.

As a result, policyholders and courts often examine not only an expert’s methodology and conclusions, but also the nature and extent of the expert’s relationship with the insurer. For example, the frequency of retentions, the compensation received, and whether the expert has consistently reached conclusions favorable to the carrier. This can be done through targeted discovery, including subpoenas and depositions.

Subpoenas. A subpoena can be a valuable tool for uncovering information regarding the relationship between the insurance carrier and its expert. Through a targeted subpoena, information can be found regarding the volume and frequency of assignments, communications, invoicing, assignment instructions, etc. This information can be critical in evaluating the carrier’s influence on its experts.

Depositions. Depositions offer a critical opportunity to examine carrier expert qualifications, relationship with the carrier, and basis for the opinions offered in a property insurance dispute. Through targeted deposition questioning, one can explore the number of assignments received by the expert from the carrier, communications with the insurer, and instructions provided before the inspection. This questioning can be a vital way to find out what the expert knew before the inspection and the methodology they used in determining their carrier-favorable decision.

But what can a policyholder or public adjuster do during the claims process if their carrier retains an expert and they want to evaluate whether they are truly independent? First, make sure you know the identity, qualifications, and role of any expert sent out by the carrier. Second, know the purpose. What information has the expert been provided, and what are they going to be inspecting? And third, make sure you document everything, including the inspection itself. When the expert is inspecting the property, make sure someone is there on behalf of the policyholder who is taking detailed notes of the inspection, as well as photographs.

It is important to recognize that the mere fact that an expert is retained by an insurer does not, by itself, mean the expert is being influenced by the insurer or that they are not capable of providing an objective opinion. Many experts provide valuable technical analysis and approach each assignment with professionalism and integrity. But in order to ensure that the expert’s opinions are subject to appropriate scrutiny and evaluation, it is important that you, as a policyholder, as a public adjuster, or as an attorney, know how to effectively put the expert to the test.

Ultimately, transparency is essential to ensuring a fair claims process. When an expert’s opinion conflicts with a prior claim decision, or discovery shows that opinions may have been edited or altered, it is appropriate to explore whether the opinion was based solely on the evidence or influenced by the interests of the party it was hired by. Meaningful scrutiny of experts and potential influence protects the integrity of the claims process and allows policyholders to determine whether an expert’s opinion represents a fair assessment of their loss.