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OCTOBER 2023 FURTHERING THE HIGHEST STANDARDS OF CLAIMS AND LITIGATION MANAGEMENT Named Storm Triple Threat The Roundabout Prepare Now, Penalties Are Coming JURY TRIALS TECHNOLOGY’S IMPACT ON CIVIL LITIGATION AI AND THE FUTURE OFTHECLM.ORG/MAGAZINE CLM MAGAZINE 3 CONTENTS CLM MAGAZINE OCTOBER 2023 20 AI AND THE FUTURE OF JURY TRIALS Technology’s impact on civil litigation 24 TRIPLE THREAT Resolving hurricane claims after Hilary, Idalia, and Lee 30 THE ROUNDABOUT Transportation experts discuss virtual mediations and assessing the strength of the plaintiff’s attorney 35 UNLEASH YOUR EXPERTISE! Together we can create the most focused and ingenious Annual Conference yet 36 CAREERS Competition across the country 37 BETWEEN THE LINES What was your scariest case/claim or what do you think is the scariest trend you’ve seen? 38 WEBINARS Resolving disputes 39 EVENTS Upcoming events, chapter activities, and recent webinars 40 NATIONAL News and verdicts that affect you from across the country 42 VOICES Getting to know Zurich NA’s Denise Shane FEATURES 4 FRONT DESK Finishing strong 6 EXPOSURE Unwelcome surprise 8 ASK THE EXPERT Hurricane Idalia recovery 10 TELEMATICS: A SWORD AND A SHIELD A helping hand in complex trucking litigation 12 ATTORNEY-CLIENT PRIVILEGE AND EXTRA-CONTRACTUAL CLAIMS A primer for first-party bad faith actions involving UM and UIM 14 PREPARE NOW, PENALTIES ARE COMING CMS closes in on final rule for imposing CMPs 16 INCLUDING EVERYONE; EXCLUDING NO ONE The importance of enhancing and implementing DEI initiatives in the face of adversity COLUMNS AROUND THE CLM 20 24 30 10 35 42 164 CLM MAGAZINE OCTOBER 2023 FRONT DESK A publication of DIRECTOR OF CONTENT Phil Gusman ASSOCIATE EDITOR Angela Sabarese ASSISTANT EDITOR Fran Clark CONTRIBUTING EDITOR Abi Potter Clough ART DIRECTOR/ PUBLISHING OPERATIONS MANAGER Jason T. Williams EDITORIAL QUESTIONS Phil Gusman phil.gusman@TheCLM.org CHIEF EXECUTIVE OFFICER Ronna Ruppelt VP PARTNERSHIPS Jeremy Campbell SENIOR ACCOUNT EXECUTIVE Laurel Metz ACCOUNT EXECUTIVE Megan Josd ADVERTISING QUESTIONS Jeremy Campbell jeremy.campbell@TheCLM.org 513-377-7228 OCTOBER • ISSUE 8 • VOL. 7 REPRINTS For reprints and licensing please contact Jeremy Campbell at jeremy.campbell@TheCLM.org or 513-377-7228. CLM Magazine is published monthly and covers news and topics of interest to insurance claims, risk, and litigation management professionals. Copyright © 2023 by the CLM. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the CLM. The views expressed in the articles are solely those of the authors or those interviewed and do not necessarily reflect the views or opinions of CLM or the companies in which the authors are employed. As I travel home from our Construction Conference still exhilarated from the energy of our community, I want to share my thoughts and appreciation. From an engaging first-timers welcome to the compelling workshops and content, the conference captured the spirit of CLM: meaningful learning, quality networking, identifying and solving industry problems, and, of course, doing it all while making lasting memories together with colleagues and friends. I want to sincerely thank our Construction Community, volunteers, members, and sponsors who made this conference such a success. Your dedication to CLM and passion for this industry are why we exist. We couldn’t do it without you! It’s hard to believe we are embarking on the final quarter of the year. Where has the time gone? The CLM team is working on a big finish to 2023, and an even more exciting 2024. There’s still plenty of content, community, and connections to be had before we close out the year, like our Professional Development Day on Nov. 8 in Hartford, Connecticut. I’m thrilled to have the Connecticut deputy attorney general and section chief of the FBI’s Cyber Division join our lineup of expert industry speakers who will dive into topics like artificial intelligence, the dark web, active shooter situations, biometrics, privacy regulation, and catastrophic losses. And, of course, we cap off the year with our Focus Conference and Holiday Party in New York on Nov. 29. This event sells out every year. It’s a day of interactive discussions on the hottest topics in claims for that last minute CE/CLE followed by a memorable evening in magical Manhattan with a celebration at Bryant Park Grill. As for 2024, we are putting the finishing touches on our plans, so stay tuned for exciting developments! One thing I can tell you about next year is that registration for the 2024 Annual Conference (April 2-4 in San Francisco) opens on Dec. 6 at noon Eastern time, so mark your calendar! Thank you all for your continuous support and enthusiasm. We’re here to make every moment count, so we love your feedback to help us continually improve, grow, and deliver value. If you have ideas, I would love to hear them—drop me a note at ronna.ruppelt@theclm.org and together we will build the future for your CLM. All the best – Ronna Ruppelt, Esq. CEO ronna.ruppelt@TheCLM.org LinkedIn.com/in/ronnaruppelt Finishing StrongPROPOSAL SUBMISSION DEADLINE: MONDAY, OCTOBER 23 AC24 APRIL 2-4 | SAN FRANCISCO #CLM2024 Unleash Your Expertise Show us how you’ve embraced the best of business-as-usual and unleashed the power of newly discovered or enhanced claims management tools or processes. We know you innovate every day – now is your chance to share those best practices in claims resolution and litigation management for others to embrace. Submit your roundtable session proposal for our Annual Conference now.6 CLM MAGAZINE OCTOBER 2023 EXPOSURE UNWELCOME SURPRISE Tropical Storm Hilary brought rare winds and heavy rain to Southern California. Pictured is an aerial view of remnants of floodwaters beneath wind turbines in Palm Springs, California on Aug. 22. For more on the impact of Hilary, see our feature, “Triple Threat” on page 24. PHOTO: MARIO TAMA/GETTY IMAGES8 CLM MAGAZINE OCTOBER 2023 ASK THE EXPERT The state of Florida will experience hurricanes. That is a reality that residents, government, businesses, and the insurance industry understands. Recognizing the threat, though, does not diminish the impact of hurricanes once they strike, and no matter how prepared a state may be, certain hurricanes can still offer up unwelcome surprises. When Hurricane Idalia made landfall Aug. 30 in Florida’s Big Bend, discussions and articles noted the rarity of a major hurricane hitting this area, and concerns mounted about the potential impacts. Now that the storm has come and gone, and damage assessments have been made, CLM Magazine talks to Mark Friedlander, director, corporate communications for the Insurance Information Institute , to discuss Hurricane Idalia’s impact and what lessons can be learned. Q: WHEN WE LOOK AT THE INSURED-LOSS ESTIMATES AND THE DAMAGE DONE, WHAT IS YOUR OVERALL IMPRESSION OF HURRICANE IDALIA’S IMPACT ON FLORIDA? SOME HAVE SUGGESTED FLORIDA “DODGED A BULLET” BASED ON THE AREAS MOST IMPACTED— AND THE AREAS THAT WERE SPARED. WOULD YOU AGREE WITH THAT ASSESSMENT? MARK FRIEDLANDER: “In terms of losses incurred from Hurricane Idalia, it is a much smaller event for the property and casualty industry compared to Hurricane Ian last year. Catastrophe modelers estimate private insurer losses for Idalia will run $2-$5 billion, compared to the estimated $60 billion loss from Ian. “The biggest differences are Idalia weakened to a Category 3 before landfall and struck one of the most sparsely populated areas of Florida. Idalia would have been a much bigger loss event if it struck a densely populated area like Tampa Bay. Another significant differentiator compared to Ian was Hurricane Idalia Recovery By Phil GusmanTHECLM.ORG/MAGAZINE CLM MAGAZINE 9 coastal residents heeded evacuation orders in the most flood-prone areas, which prevented loss of life from drowning in storm surge.” Q: WHAT ARE YOUR THOUGHTS ON THE PATH IDALIA TOOK? MUCH HAS BEEN MADE OF IDALIA BEING THE FIRST MAJOR HURRICANE TO MAKE LANDFALL IN FLORIDA’S BIG BEND SINCE 1896, ALTHOUGH A COUPLE OF OTHERS TRACKED CLOSE TO THAT AREA. WHAT DO YOU BELIEVE IS THE SIGNIFICANCE OF WHERE IDALIA STRUCK? FRIEDLANDER: “From the time the storm formed, models were very accurate on where Idalia would make landfall in Florida’s Big Bend region. In fact, Idalia followed a somewhat similar path to Hurricane Michael in 2018, which struck the Florida Panhandle as a Category 5 major hurricane, but Idalia tracked further east. “The unique aspect of Idalia is it initially formed near the Yucatan Peninsula, which is typically where we see tropical cyclones form later in the season, not in August. The bottom line is no area of Florida’s nearly 1,400 miles of coastline is safe from landfalling hurricanes, especially with record sea-surface temperatures fueling storms this season.” Q: HOW WOULD YOU CHARACTERIZE RECOVERY EFFORTS? WHAT HAS GONE WELL, AND WHAT ARE SOME OF THE OBSTACLES? FRIEDLANDER: “Recovery efforts appear to be going well in the impacted communities. The Florida Department of Financial Services quickly established two insurance villages in hard-hit counties, where dozens of property insurers are on the ground helping their insureds file claims and issuing payments for additional living expenses. Under the direction of a new insurance commissioner, Florida’s Office of Insurance Regulation is stressing that insurers quickly respond to impacted policyholders and focus on processing and settling claims as quickly as possible.” Q: AFTER EVERY STORM, WE ALWAYS DISCUSS “LESSONS LEARNED.” WHAT ARE THE LESSONS LEARNED FROM HURRICANE IDALIA? FRIEDLANDER: “The biggest lesson learned from Idalia is, once again, that too many Floridians are not insured for flood damage. In the hardest-hit counties, flood insurance take-up rates were 5% or less—much lower than the statewide average of 18%. “Those without flood coverage will have to rely on grants from FEMA and the state of Florida to help in their recovery. However, these grants will not provide funding to rebuild homes, so it will be a very long recovery process. We constantly stress that consumers need adequate levels of property insurance and flood insurance to ensure they are financially protected from hurricane damage.” K Photo: Joe Raedle/Getty ImagesNext >