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Yet Another Blast from the Past -- Evidence Preservation Redux

Posted 4/1/2021

By R. Bruce Wright, CPCU

It seems that this issue of RE-marks has become a greatest hits collection, as a direct reaction to some recent events. In the case that sparked this article, a recent "notice of claim" was submitted to the program following a first report contact from the plaintiff’s attorney.

This led me to take a look at our past comments about preserving physical evidence. As it turns out, there have been at least 3 articles dealing with this subject in past RE-marks issues — January of 2015, January of 2012, January of 2010 — as well as references to this specific issue in several other articles, including those on helping your insurance adjusters, the requirements for claims documentation, and challenges of defense work. Links to first three archived articles can be found at the bottom of this new article; please take a look 

So why beat this drum again and why now? Well, as mentioned, we have recently had a claim presented that our client didn’t think involved them, hadn’t reported to us, and from which, accordingly, no evidence had been preserved. Now these many months later, they have received a letter from an attorney claiming that 2 fatalities occurred in a fire that the power company has (purportedly) some responsibility for. The details of this particular case are not really important to the point I want to make here. The “take home” message is simply this: if any serious loss, and especially any fatality, should occur, that in any possible way (Or in any possible world!) could ever be linked to your services — before, during, or after the actual event — you should immediately report it, and you need to save any and all physical evidence. I know some of our clients understand this, as I have been involved in reviewing claims files where we had absolutely no apparent liability and no reason to anticipate any allegations, but the utility notified us “just in case” because of the severity of the loss. This is exactly what we want you to do! Once we know, we can ask for our consulting attorney to review the case, give advice, and provide guidance on how to proceed, what to document, and what to keep, as well as on what not to do. 

Our staff, consultants and insurance partners do all that is possible to protect you, our clients, from adverse outcomes in claims and lawsuits. But you have an active role to play in that effort too, starting with early reporting of any potential issue to us, directly or via your local agent, so that we can begin our efforts. Prompt reporting is crucial if we are to provide the best possible results. We are better equipped to advise you on what is, or is not, important to save as evidence that may be needed down the road. Steps may need to be taken immediately, and if they are not, it may be impossible to do anything about it later, particularly with respect to physical evidence. We have more than one active case right now with high potential loss caps where important physical evidence is no longer available.

More than once I have mentioned that our long-time consulting attorney, Mark Barber, has advised us that the single most valuable step you can take in the aftermath of a loss is “Save the evidence!” Once something goes wrong, it is crucial to collect and preserve any available physical evidence. Any items involved in a claim incident should be identified, collected, protected, and retained, segregated from other material, so you can keep them in as near as possible to the condition in which they were found and find them later when needed. If you haven’t done so yet, you should get busy and create a formal policy on how to retain and protect all physical evidence following any serious incident, regardless of the lack of any obvious liability. The policy should make clear who is to do this, list the “how to” rules relative to gathering and preserving the evidence, and outlining storage procedures.  

Here are links to the articles referenced above:

Save the Evidence, RE-marks 1/1/2010

When in Doubt, Don’t Throw it Out, RE-marks, 1/1/2012

New Years Resolutions; Our Top Three Suggestions, RE-marks, 1/1/2015

Reviewing all of them is worth your time, I promise.

One Final Thought…

If you hear of any fatality, whether on, near, or in reach of your lines, or even in your territory, to a contractor, other worker, driver, pedestrian, resident, or any member of the public, report it! The same goes for any serious accident, or any line contact regardless of the injury, or even with a denial of any injury. We have a case pending now where the claimant denied being hurt at the time of the accident, gave a statement to that effect and now we have an attorney looking for a six figure settlement. We have a case reported where our employee was present (although not working on anything electrical) when a another party contacted a line while working on a public school athletic field light stanchion, a school not even served by our client, but they reported it to us even so, since they knew about it, and their employee was there. No claim was ever presented, but we were glad to have a chance to document the file. As a famous person once said, good things only happen with planning, but bad things happen all by themselves! And anything can happen when a life is lost. Please let us know at once so we can prepare to protect you!