Expert Witness Blog

Auto insurance expert witnesses will be testifying in New Mexico cases that cover multiple insurance fraud schemes. The NM Senate passed a bill that would increase insurance fraud penalties by empowering courts to combine the insurance money stolen by multiple schemes into one larger dollar amount and longer sentences. ClaimsJournal.com reports:

State Sen. Carroll Leavell sponsored SB 117, which passed Feb. 17, 2009. A staged-accident ring, for example, might bilk several auto insurers out of hundreds of thousands of dollars with dozens or more fake injury claims. Combining these claims into one larger dollar sum for sentencing purposes can greatly magnify the final penalty, according to the Coalition Against Insurance Fraud. Several states permit courts to aggregate stolen insurance money when sentencing swindlers. Some laws fall under the state’s insurance codes, and others under their general criminal code.

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. write on security layering: the Onion Philosophy:

The first layer is the outside skin of the onion which translates to the site perimeter of the property. The building skin of the architecture is the next layer. Sensitive areas within a building are deeper layers requiring protection, and finally special persons,

information, or property may require point protection or the center of the onion. The site perimeter is the first, not last, line of defense. The State Department seeks setbacks of at least 100 feet for new buildings and even that distance is difficult to obtain in most urban settings. While most perimeter fences and walls are designed to discourage intruders, they are of little use against a determined person or bomb vehicle.

In 8 & 15 Years Jail for Auto Arson in Idaho, Insurance fraud expert witness Barry Zalma writes:

On January 21, 2009, the Idaho Department of Insurance reported that Spencer Jay Maschek and Patrick Anthony Morrissey, 23 were convicted of arson to their vehicles. In February, 2008, Jerome County Sheriff’s Department found a burning vehicle belonging to Maschek. Maschek subsequently filed a claim with his insurance company. Farm Bureau Insurance contacted the Department of Insurance about the suspicious nature of the claim. Twin Falls Police Department discovered that Maschek had asked Morrissey to set the vehicle on fire. Department of Insurance Investigator Jan Heinz gathered information and assisted Twin Falls County Sheriff’s Department and Farm Bureau Insurance in the investigation. Arson and Conspiracy to Commit Arson are felonies punishable by up to 25 years in prison and a $100,000.00 fine.

Morrissey was found guilty of two felony charges, Conspiracy to Commit Arson in the First Degree and Arson in the First Degree. He was sentenced August 5, 2008, to 15 years, five years fixed, for each crime. The sentences will run consecutively. Morrissey was also ordered to pay restitution. Maschek pleaded guilty to Conspiracy to Commit First Degree Arson, a felony. He was sentenced January 12, 2009, to eight years in jail.

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. describe design criteria:

Threat: Tactics; weapons, explosives, tools Assets Levels of protection Constraints The result of the assessment will be a set of recommended countermeasures that may be priced and presented to the owner in a priority order so selections may be made of those recommendations that are prudent and cost effective. In the case of the government standards, the assessment results in the assignment of a defined Level of Protection (LOP) with specified countermeasures. When the LOP is defined, the specified countermeasures are priced and again the owner may select appropriate measures depending on a prudent level of protection and the cost effectiveness of the measure.

In Ethics & Fraud Investigation insurance expert witness Barry Zalma writes:

Ethical underwriters and claims persons should not use technicalities to reach a decision on a policy or a loss. Rather, the ethical underwriter or claims person must apply the facts to the issue raised and provide the indemnity promised. Similarly, the insured must also clearly, fairly, and completely advise the underwriter of all of the facts known, or that he should know, that would be material to the decision of the insurer to accept or reject the risk. The California Court of Appeal explained the situation as follows:

An insurance company is entitled to determine for itself what risks it will accept, and therefore to know all the facts relative to the applicant’s physical condition. It has the unquestioned right to select those whom it will insure and to rely upon him who would be insured for such information as it desires as a basis for its determination to the end that a wise discrimination may be exercised in selecting its risks. (Emphasis added) [Robinson v. Occidental Life Ins. Co. (1955) 131 Cal. App. 2d 581, 586 [281 P.2d 39].]

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA. and Anthony DiGreggario of Atlas Safety & Security Design, Inc. write on the assessment process.

Achieving the correct level of protection against site-based threats may be very expensive and is highly dependent on the nature of the protected assets and the threat against which they require protection. Determining what is required is a matter of managing the perceived risks. If the designer is to assist in providing protection in the design of the site, an assessment of the security requirements must be accomplished preferably before the design begins, but certainly no later than the beginning of the architectural programming phase. This assessment is the responsibility of the owner;

however, it is incumbent on the designer to assure that the nature of the security requirements is determined before the design begins. Failing to obtain a definitive answer will certainly result in design changes, delays, and cost increases to the owner and the architect if the owner “discovers” their security needs later in the design process.

In Ethics & Fraud Investigation insurance expert witness Barry Zalma writes:

Ethics is a process of systematically applying, using, defending and recommending concepts of right and wrong behavior. Ethical behavior is required of both parties to a contract of insurance for the system to work. Ethics is the essence of insurance. Insurance was created to spread risk from individuals to multitudes. Spreading the risk in a fair, ethical and honorable manner from one person to many is the basis upon which a system of insurance was founded. The insurance contract since modern insurance was first created was founded on the concept of Uberrimae Fidei. The phrase is used to express the principle that a contract must be made in perfect good faith, concealing nothing. In the case of insurance both the insured and the insurer must observe the most perfect good faith towards each other. Insurers and reinsurers are dependent on:

utmost good faith [which] may be viewed as a legal rule but also as a tradition honored by ceding insurers and reinsurers in their ongoing commercial relationships. [Unigard Security Insurance Co. v. North River Insurance Co., 4 F.3d 1049 (2nd Cir. 09/09/1993)]

In Site Security Planning and Design Criteria, security expert witness Randall Atlas Ph.D., AIA and Anthony DiGreggario of Atlas Safety & Security Design, Inc. start with a “Statement of the Problem.”

While architects have to design buildings that are fire resistant and be accessible to persons with disabilities, they don’t have to make buildings resistant to crime. Designing for fire resistance and accessibility means complying with building codes and industry standards. The purpose of building codes around the United States is the protection of the health, safety, and welfare of the building occupants. Thus, architects and designers need to design for the safety and security of the users of the environment. The architects of the future must design against threats of criminal behavior, workplace violence, and acts of terrorism as part of their commitment to designing buildings that protect the building users.

The first contact a person has with a particular architectural project is accessing the site to gain entry to a property or building. With the increasing threats to persons and property, from acts of terrorism, workplace violence, and street crime, the first and most important line of defense is securing the site perimeter and the careful placement of the building/s on the given site.

In Barry Zalma on Whether Premium Increases Are Due to Weather Changes, insurance expert witness Zalma writes:
“It is dangerous in most legal analyses to limit the conclusion to one factual issue. Underwriting insurance requires the analysis of multiple factual issues that can increase or decrease the potential for loss. The underwriter and the actuary want to cover those risks where the insurer can collect sufficient premiums to pay all losses that can be anticipated and to still have enough to make a profit for its stockholders. Insurers cannot allow hysteria over global warming to effect their decisions with regard to a particular risk. They must review all of the potential factors that can effect the risk so that a well run, well built structure, on land above sea level in New Orleans becomes a risk an insurer is willing to take for a reasonable premium while a home in Beverly Hills, well built on stable ground owned by a person who has suffered five fire losses in the last ten years and three theft losses in the last five years, becomes an unacceptable to a prudent underwriter.”

Accident investigation expert witness Steven Barsky is Principal of Marine Marketing and Consulting, a consulting business for the diving and marine-related industries. In Analysis of a Diving Accident: Death of a Diver, the expert witness writes on lessons to be learned for diving companies:

During his deposition, the head of the diving company admitted that although his company was a member of the ADCI, he had only joined the association to obtain the insurance and believed that Consensus Standards were not something that applied to his operations. Unfortunately, he learned that these are the standards your company will be held to as a commercial diving contractor.

Never modify diving equipment that you have purchased from a manufacturer. Once a piece of gear is modified, the liability for that equipment becomes your responsibility. If you think there is a problem with a piece of gear and it needs modification, consult the manufacturer and get their response in writing before making any changes.