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Drawbacks to Using Web to Settle PI Claims

Chicago Lawyer, 09/01/1999
By Robert A. Clifford

9/1/1999 - Chicago Lawyer

So you’re looking to settle your personal injury claim.

Turn to the Yellow Pages for a lawyer? Archaic.

Jot a telephone number from a billboard or a park bench? Childish.

Or, how about just logging on to a Web site on the Internet and typing in a sum for which you are willing to settle? In less time than it takes to file a complaint, the insurance company counters. In the next few minutes, the computer lets you know your case has settled; and you never left your computer terminal.

Sound like Orwell’s "1984?" No, it’s more like "1999" because it’s already here.

The Internet has revolutionized the way people do a lot of things; but when it comes to settling civil suits, that’s where I draw the line. Not only does such a settlement process ring of impersonal, risky business, but there’s also a hint of unreliability, as well as a lack of privacy and perhaps even a touch of unprofessionalism about the whole thing.

Not to two men who a year ago created a unique New York-based Web site called Cyber$ettle and are making money from people’s love affair with the Internet.

Charles Brofman and James Burchetta, two attorneys on the opposite side of the aisle, stumbled upon the idea when the two of them settled a case by each handing the court clerk an offer on a slip of paper and getting a thumbs up when they were within a reasonable range.

It was the seedling for an idea that would later be accomplished on a wide scale. Other online ventures have attempted to settle even more complex disputes. One Accord Technologies in Vancouver, British Columbia, is testing an Internet system in which multiple parties to a lawsuit can exchange settlement proposals, including monetary and nonmonetary demands.

The way these generally work is that the company takes up to three settlement offers from the insurer, usually progressively higher, as well as from the policyholder, with both parties using secret passwords. The company compares each demand to the settlement offer for each round. When the offer from both sides is within an agreed-upon percentile range, the claim is settled. Poof! Just like that.

To determine the financial range, most users apparently are following a company-recommended formula that stipulates that when an offer is within 30 percent or $5,000 of the demand, the claim is settled for the median amount. For instance, if an insurer offers $10,000 to settle the claim and the plaintiff’s attorney posts a $15,000 demand, Cyber$ettle will split the difference between the two and settle the case for $12,500; and the matter is over. Plaintiffs are notified online, and insurers are told by e-mail.

If after three rounds of negotiating, the parties cannot come up within the agreed-upon range, the process ends and traditional dispute resolution methods are pursued without either side, supposedly, being privy to the other’s terms. Cyber$ettle even offers the services of human negotiators when the computerized process breaks down.

By the way, Cyber$ettle receives a fee no matter whether the case settles. It makes sure, too, that it gets its money up front with an additional fee afterward should the company successfully settle the claim.

Without ever seeing or speaking to the other side - which actually could have its advantages with a couple of defense lawyers I’ve dealt with in person - it also has some ghastly disadvantages. The first that comes to mind is whether the parties understand the ramifications of the lawsuit.

Also, what about privacy concerns? Who is to say these communications are really private when they are traveling over the Internet? Besides these timing issues, what about the guarantee of privacy of the company’s database, particularly if negotiations fail?

It’s much too early to tell. But one thing’s for sure; NAC Re Corp. of Greenwich, Conn., the parent company of Nac Reinsurance Corp., earlier this year purchased a majority interest in Cyber$ettle. I see this as a stacked deck against an injured plaintiff when the very settlement service is owned by an insurance interest.

For now, this magical settlement system appears to be limited to minor insurance matters and workers’ compensation claims. For overwrought insurance adjusters, the system may seem to be just what the doctor ordered. But who is controlling this system? What ethical watchdog is overseeing this process?

And just what set of rules would apply, anyway, with a plaintiff in New York, a defendant in California, and the plaintiff making demands from her laptop in Texas, while the defendant is sending offers while on her business trip in Paris, France, and the settlement is finally reached two days later? What if it is deemed to be a bad deal and one of the parties wants to back out the following day? Is there any recourse?

Certainly, the Internet is an effective way to communicate. Countless business transactions occur every minute on the Web.

But will this settlement system of the new millennium really settle cases more efficiently and lower defense and indemnity costs as touted? Several insurance companies, such as Travelers Property & Casualty Corp. of New York and Fireman’s Fund Insurance Co., have used or tested this online claims system for casualty and property claims.

Already Cyber$ettle boasts more than 2,000 cases have run through the system with a high percentage of those actually reaching a conclusion online. For some it may mean a faster solution, but is faster necessarily better?

I just think that someone needs to be regulating this process to assure that everyone’s rights are protected.

 


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