Ken Shigley is a former chairman of both the Georgia Insurance Law Institute and the Tort & Insurance Practice Section of the State Bar of Georgia. He worked for a decade representing insurance companies before launching his trial practice representing individuals, families and small businesses. He has taught on insurance coverage issues at national continuing legal education programs.
It is a great advantage for a trial lawyer to have a deep background in interpretation of insurance contracts. The words used in drafting a lawsuit may determine whether or not insurance funds are available to pay the claim, and whether or not the client is able to collect any money. Strategy must be planned from the beginning to match claims to insurance coverage.
A recent example in our law practice was a tragic case involving the shooting death of a child. A senseless dispute between the children of two families led to a teenage son in one of the families firing a handgun in the direction of the other family's house. A four year old boy in the house was killed. Most homeowners' insurance policies completely exclude coverage for such an event under "intentional acts" or "criminal acts" exclusions. However, we found out what insurance company had the homeowners' policy for the shooter's family, got a sample copy of that insurer's policy, researched how the coverage exclusions written in that language had been construed by the courts, and drafted the lawsuit to weave around it.
Many lawyers would not have taken the case because they would have assumed there was no coverage. However, when our carefully drafted complaint was served, the insurance company immediately paid its policy limits.
In another case, a small town general practice lawyer contacted us about a fire claim. The insurance company refused to pay anything because the lawyer had failed to notice a policy provision that required that any suit be filed within twelve months from the date of loss. First we made sure that the referring attorney made full disclosure to his client and notified his own legal malpractice insurer. Then we got to work. While such contractual suit limitation provisions are normally enforceable, we were able to slice and dice the policy language and the case law well enough to get a court to rule that there were issues for a jury to determine. That case settled favorably for the client at mediation for nearly the full amount of the fire loss. The client was delighted and the referring attorney was both happy and relieved.
Interstate trucking insurance coverage is practically a specialty to itself. We have worked with that enough to be invited to speak on the topic at two national seminars of trucking attorney organizations in 2008, and have agreed to speak on the nexus between trucking insurance, motor carrier bankruptcy and insurer insolvency at a national trial lawyers convention in San Diego in 2009.
Making sense of such complexities of insurance policies requires long study and experience. If you have ever read an insurance policy, you may appreciate the words of an appellate court in another state when it observed that a policy provision was "so well-hidden that only a determined, persistent and experienced reader knowing precisely what information he is seeking would be able even to find the applicable sections of the policy." The court went on to state that it was highly unlikely the average policyholder would "analyze the entire policy in order to penetrate its layers of cross-referenced, qualified, and requalified meanings" or "successfully chart his own way through the shoals and reefs of exclusions, exceptions to exclusions, conditions and limitations, and all the rest of the qualifying fine print, whether or not in so-called plain language."
However, policyholders are generally held responsible for reading and understanding their insurance policies, no matter how undecipherable they may seem to the average person.
While ambiguities in insurance policies are supposed to be construed against the insurance company and in favor of the insured, courts sometimes find murky and virtually hidden clauses unambiguous in order to defeat coverage. A lawyer who has not focused on insurance law for decades may be unfamiliar with insurance policy construction, and such ignorance may be fatal to your claim.
Therefore, whether you are an insured seeking to enforce the coverage you paid for, or a person with a serious injury or wrongful death claim against a company or individual whose insurer is trying to avoid paying, it is important to be represented by a lawyer who has deep experience in insurance law.