The top recent insurance claims trends (inspired by the names of NHL teams).
The Alberta Lawyers Insurance Association (ALIA) manages the professional liability insurance program for lawyers in Alberta. Over the years, we have seen different trends in claims presented to us.
I do not intend to express any comment about how to assemble your “fantasy league” team by the names chosen. Some names just fit the topic better than others.
- The Predators: In an Estate battle, there are often allegations that the lawyer did not examine for capacity or look for undue influence. It is important that Estate lawyers make good notes. If, for example, the Testator is deliberately excluding one child, the lawyer should write down why that is the case.
- The Penguins (cases that no longer fly): Most of these are claims related to the drop dead rule. We also have claims for failing to serve the Statement of Claim, and even for failing to appear at trial. Lawyers need to keep diary dates current. If the lawyer intends to cease to act, then the lawyer must cease to act in accordance with the Rules.
- The Stars: Claims related to tax matters. Lawyers who do not understand or practice tax law often lament (when they are sued): “But I was not providing tax advice.” A lawyer should document in the retainer agreement whether or not tax advice is included.
- The Avalanche: When one claim arrives, there will be plenty of claims following. Claims by investors who have lost their investment funds fall under this category. Often the lawyer was not the lawyer for the investors, but the investors allege that they thought this person was their lawyer. A lawyer should always ask: “Who does this money belong to, and why am I being asked to hold it in trust?”
- The Sharks: Claims in which there is an allegation that a lawyer is in a conflict. In many cases, this appears to be an attempt to get a lawyer off the file. A conflict diary system is essential, but its role is limited. A lawyer might need to go beyond the diary to think about possible conflicts. However, a lawyer is not automatically obliged to withdraw from a case every time someone else alleges that there is a conflict.
- The Wild: This is the era of self-represented claimants. In the case of ALIA files, the claimant might feel: “Why would I hire a lawyer for this claim? The whole reason that I have a problem is because I hired a lawyer last time.” However, we still recommend seeking independent legal advice.
- The Sabres: Real estate transactions sometimes go wrong, or purchasers suffer “buyers’ remorse.” We do still see some mortgage fraud claims, but nowhere near the numbers that arose in 2009 and 2010.
- The Blues: Sometimes a client who settled a claim at a JDR (Judicial Dispute Resolution) will then sue the lawyer, alleging that the client did not get a good enough settlement or was pressured into settling. It is important that the client understands why a JDR is taking place, and what would be an acceptable settlement range.
- The Devils: Matrimonial files tend to be contentious, and some people simply cannot “let go” of their dispute. Lawyers need to remember that this is not their dispute. Courtesy is essential.
- The (sitting) Ducks: Sometimes a lawyer can misread an offer by reversing two digits. Another example occurs in commercial transactions with long documents, where terms or provisions are changed in one place in the document, but overlooked in another place, leading to an inconsistency in the document. Proofreading is valuable.
Written by: Philip Carr, ALIA, Senior Claims Examiner