Bad Faith and BBQ

  • 07 December, 2023
  • 29 MB

Up next on the Justice Team podcast, host Bob Simon welcomes law firm partners Tom and Chelsea Dickerson from Kansas City, who bring their expertise in personal injury and insurance litigation to the table. They share valuable advice for seasoned lawyers and aspiring law students on strategically surpassing policy limits in insurance cases, especially in bad faith litigation. The Dickersons underscore the critical role of detailed injury documentation and the tactical use of demand letters to prompt insurers to meet their obligations. Delving into the nuances of spine injury cases and the pitfalls of underestimation by insurance company software, this episode is packed with practical tips on effective communication with adjusters and building a formidable case for bad faith.

Chelsea Dickerson, Dickerson Oxton

Tom Dickerson, Dickerson Oxton


Bob Simon (00:07):
All right. Welcome to this edition of the Justice Team Podcast. And we’re very, very blessed to have some bad faith in barbecue action coming into us from Kansas City. And we have the partners in law and love, Tom and Chelsea Dickerson.

Tom Dickerson (00:21):

Chelsea Dickerson (00:21):
Thanks so much for having us. Excited to be here.

Bob Simon (00:23):
So their practice incorporates both Missouri and Kansas, you guys do both?

Tom Dickerson (00:27):
Missouri and Kansas.

Chelsea Dickerson (00:27):
Yes, absolutely. Yes.

Bob Simon (00:29):
Nice. So I assume that Chelsea’s the real lawyer and Tom’s just the mouthpiece.

Chelsea Dickerson (00:35):
That’s right. He helps me. Yep.

Tom Dickerson (00:37):
I’m just along for the ride. I’m the pretty face.

Bob Simon (00:40):
Pretty face… We’ve seen some great success come out, big verdicts that… You had a big retrial that gave over 5 million in Kansas, which is very hard to do.

Tom Dickerson (00:50):
Yes, it is. Yes it is. I call that my Phoenix case now because we were litigating it for seven years and we went out in the middle of Kansas and we tried it and lost it, and we had problems with the judge. It was problematic. And then we had problems with the jury and the appellate court said we got a new trial. And so we refiled it in Kansas City and then retried, we did the whole thing all over again. And then we got $4,500,000 verdict, and we get attorney’s fees.

Bob Simon (01:19):
Whoa. Look at that.

Tom Dickerson (01:20):
That should be six, when it’s all said and done.

Chelsea Dickerson (01:22):

Bob Simon (01:23):
So Tom and Chelsea’s firm, they headquarter in Kansas City, right?

Chelsea Dickerson (01:27):
Yes, indeed.

Bob Simon (01:29):
You guys do a lot of personal injury, but also the insurance litigation, bad faith.

Tom Dickerson (01:33):

Chelsea Dickerson (01:33):
Absolutely, absolutely.

Tom Dickerson (01:34):
A hundred percent.

Bob Simon (01:35):
All right, so we’re going to concentrate this episode on helpful tips for all the lawyers and law students listening of bad faith and more importantly, a lot of these people that are doing litigation cases, how to get more than the policy limit by the insurer. In California, we have one of the worst, it’s $15,000 per person is the least amount of limit. So first of all, what are some practical tips? And I’ll start with you, Chelsea, as you’re working up the file and you see what’s the minimum policy that you have in Missouri?

Chelsea Dickerson (02:01):
Yeah, it’s a little bit higher, surprisingly from Missouri and Kansas versus California, but it’s $25,000 is the state minimum for both. And what we tried to do, I will say when we were young lawyers, we were just excited to get a policy limit, that seemed so great. But no, it’s very important to be able to identify those cases that come through where you can work them up and get more than the policy limit and know that that’s the goal.

The goal is not to get the policy limit on a facet injury case, for example, or a herniated disc. That’s not what you’re trying to do. So initially you have to work up the injuries, you have to get them to the right specialist, do all that. You also have to make sure that when you’re sending the demand, you are making it crystal clear to the insurance company from a later perspective that they should have paid it. But maybe holding back just a little bit of information because some of those adjusters, they don’t know what they’re doing. I say some, that’s gracious. So just being able to recognize that and saying, okay, well yeah, I am going to give all the medical and billing records, but I’m just going to give them just enough information in that letter to say, “Hey, this is a herniated disc case. Give us the policy limits. Thanks, bye.” And if they don’t do their job, which they usually won’t do, then you’re off to the races. Absolutely.

Bob Simon (03:24):
And in California you have to give… There’s certain criteria. It’s like now it’s like you have to give 30 days just has to be reasonable, essentially it has to be like what’s reasonable? Give us enough information as you have, if you have the medical records, turn it over, if you have the police report, turn it over. Just those kind of little criteria. But I always think what you said, you have to look backwards, so like…

Chelsea Dickerson (03:43):

Bob Simon (03:44):
So what do you mean by that?

Chelsea Dickerson (03:45):
Right. So later on, if you get through your bad faith case, they’re going to look back in time to what information the adjuster had when they had the settlement opportunity package. I made the booboo of calling it a demand. That’s what most people know it as. But it’s a settlement opportunity letter.

Bob Simon (04:01):
There you go, running with the bulls.

Tom Dickerson (04:01):

Chelsea Dickerson (04:03):
Absolutely. It’s a settlement opportunity, but that truly is what it is to the insurance company. You are being gracious to them and saying, look how reasonable we are. And later on when the court looks at the bad faith case and says, well, should they have paid this? Yes, we’ve given them all the medical records, we’ve given them all the bills. It’s just enough information to show later on that they definitely should have paid that limit, i.e., it is bad faith that they did not at that point in time.

Bob Simon (04:34):
And what are some of those, I know Tom and I spoke on spine injuries before. I know the spinal ones, and you mentioned facets, Chelsea. So what are the injuries, that tend to open up policies more often than not?

Tom Dickerson (04:46):
I think that whenever we get imaging in a case, that’s a big moment because you’ll get a report and you’ll see exactly what’s going on, for instance, on a spine case. So there’s more spine cases than anything else. And there’s more opportunities I think, to get more than the policy limit on spine cases.

Bob Simon (05:01):
I agree 100%.

Tom Dickerson (05:02):
Than any other type of case. But what’ll happen is you’ll get that MRI and you’ll see, for instance, there might be a disc protrusion that’s pressing on a nerve or something like that. That 100% is, not only a policy in my case, but it’s worth far in excess of that. I mean, Bob and his firm, the proof’s in the pudding, they have these massive spine injury verdicts. And I tell you what, even in conservative places we’ve gotten those verdicts. So they’re worth a ton of money once you work them up.

But what you need to do is you need to take a look at that imaging study and say, okay, is this something more serious? And there’s really, it’s an interesting time because most insurance companies have actually shifted over to computer programs to evaluate cases. And the computer programs aren’t, I think appropriately taking into account how serious these cases are. And so what we do is we try to give the insurance company just enough to show them in terms of the evaluation that they should be paying. And it’s not your job to give them every single document. What you’re supposed to do is just give them a fair opportunity to settle. So in a lot of our cases, we’ll simply send off, the medical records off and say, “Hey, look, here’s a herniated disc case. You need to pay the limit.” And then they come back and they’ll ask for XYZ thing.

And sometimes we’ll give it to them, but sometimes we won’t. If it’s a very clear, clear, clear-cut case, we’ll just say, “No, you need to pay the limit. And we provided you enough information.” Because I come from a family of insurance folks. My father was an adjuster, my mother was an adjuster, my sister is currently an insurance adjuster, and they know the cases that they’re supposed to pay on. So the key is just giving them a fair opportunity to settle. But you need to recognize when that imaging comes back, listen to your client, “I’m still in pain.” Correlate that with the imaging study and what you’re seeing in the medical records, you’ll know if this is anything that’s permanent, it’s going to be worth more than the policy limit.

Bob Simon (06:59):
And those 20,000, 25,000, 50,000, even 100,000 dollar policy limits I find, I think of these spine cases, if you have recommendation for future care and a positive MRI and they don’t make it seriously, it opens it up. But when you talk about that imaging Tom and the programs that the other side uses is, they just don’t compute the pain levels associated with… When you look at it and it says like the facet othoptapy or formal like pyramidal stenosis computer, unless it’s words like impingement and huge acute herniation, it just doesn’t compute.

Chelsea Dickerson (07:33):
It does not. No, no.

Tom Dickerson (07:35):
And even in those cases where it actually does flag it, it often isn’t giving the appropriate amount of money for pain, suffering, mental anguish, those types of things that a jury would. There’s just this massive gap in terms of valuation between what a jury does with those things and what the computer systems do. And the insurance companies have had to shift to these things because they think it saves them a ton of money and it makes them a whole lot more efficient. But the truth is, what it really does is it opens them up to a whole bunch of bad faith because there’s not an actual skilled adjuster that knows how to evaluate a case like a lawyer would, that’s actually taking a look at it. The adjusters are basically, their hands are tied and they can’t give appropriate values to what these things are actually worth. So the human element has really been taken out of it, and that’s why it’s the best time in the world for these cases because the adjusters don’t have the ability to pay what they should be paying on the case to protect their insureds.

Chelsea Dickerson (08:31):
And they’re trained like robots, and they never account enough for general damages and pain and suffering.

Bob Simon (08:37):
And that’s one thing that I think when you talk about giving enough information, I never put a lot of all of the human loss story to it on these smaller policies, because it should just be a given.

Chelsea Dickerson (08:49):
It absolutely should, absolutely.

Bob Simon (08:52):
And also, well in California, I know they can’t take into consideration like liability disputes. If you’re wrong later and there’s a verdict and your insured is at fault, then it’s presumed that you should have known that at the time the demand was made too. So sometimes it’s easy on a liability case to open policies too. If they’re wrong, they’re wrong.

Chelsea Dickerson (09:12):

Bob Simon (09:13):
And what do you do when those insurance adjusters write back to Chelsea and they say, “All right, we got your stuff. Can you give us another two weeks?”

Chelsea Dickerson (09:18):
Yeah. So the extension game. Oh, we have really stopped giving extensions. I mean, I just think if it’s clear that they should pay, Tom mentioned it earlier, they should pay, they should pay.

Bob Simon (09:32):
On clear ones. What if it’s like, if it’s like a wobbler?

Chelsea Dickerson (09:35):
If it’s a wobbler, I will give two weeks. But there are definitely adjusters out there who will play the game of extension after extension after extension, and at some point you’ve just got to put your foot down because they’ll do that into perpetuity.

Bob Simon (09:51):
Is this something you’re doing over the phone with them and in writing? What is this game? How does it look like?

Chelsea Dickerson (09:58):
I try to keep a lot of things in writing, and there’s a definite reason for that.

Bob Simon (09:58):
And what is that reason?

Chelsea Dickerson (10:05):
Well, later on, there’s going to be evidence in the case, especially in a bad faith scenario, they’re going to be looking at every single letter. And sometimes, Bob, I’m sure you’ve seen this when you get claim notes back, you had a conversation with the adjuster that’s just not fairly reflected in the notes or maybe something was said. And also think about it, they’re making their own note, there’s a lot of CYA situations that go on. So if you have a documented letter, it’s just like with opposing counsel following up saying, “Hey, we talked about XYZ today.” I have that later. It’s my evidence in the case later. And it’s very clear.

Tom Dickerson (10:40):
Yeah, it’s like what you said, Bob. It’s about forward-thinking. It’s about thinking where you want to end up. So when you send these letters, you should be thinking to yourselves, okay, if I get my excess verdict and I’m down the line and now I’m in a actual… I’m in front of on a jury or a judge on my bad faith case, here’s the evidence that I want to prove that we gave them a fair opportunity to settle and that they messed it up. All of that stuff that you’re doing, as you’re doing it can be evidence later. And so you want to make sure that it’s all documented real well.

Bob Simon (11:09):
And documented kindly.

Tom Dickerson (11:11):
Oh, yes, 100%.

Chelsea Dickerson (11:11):
That’s true too, right, right.

Tom Dickerson (11:14):
100%, because you don’t want to be in that situation later where a jury’s looking at and they’re like, “Yeah, you were really mean to that insurance company. Did you really give them a fair opportunity?” So I mean, when it comes to extensions, I think that the best thing to do is, if it’s a really clear-cut case, there’s probably not a reason for it, but they may have a good reason. I’ve had cases sometimes where the adjuster says, I’m sorry, and this is just true. “I’m sorry, I have 300 files. I just can’t get to your demand in time. Can I have two weeks?” And in that case, I’ll say yes, and you’ll document it. And then you’ll look like the nice guy when it comes down to having the evidence reviewed later.

Chelsea Dickerson (11:51):
Yeah, I think again, it’s going back to reasonableness. Were we being reasonable? And absolutely. You want to come across kindly. I just get really sick of the games where they try to ask for too many extensions. So I think it’s having that balance there.

Tom Dickerson (11:51):
That balance, yeah.

Bob Simon (12:07):
You almost write a letter or an email, like a jury’s going to read it later.

Chelsea Dickerson (12:07):

Tom Dickerson (12:09):
That’s right.

Chelsea Dickerson (12:10):

Tom Dickerson (12:10):

Bob Simon (12:11):
I just talk like this, “Look, my client just, they need the surgery. Can you please just give them the money? Because they’re going to pay for the surgery. They don’t want to play games. Everyone wants to walk away. We know that the case is worth a lot more. That’s just let it be done. Now before we went to get this get ugly.” Because you’re going to read it and the jury’s going to be like, “That was really reasonable.

Chelsea Dickerson (12:28):
He was being so kind. Why didn’t they do it?

Tom Dickerson (12:31):
And there’s sometimes too, that there’s a good reason why you wouldn’t give every single piece of information. For instance, you might have a case where it’s a $15,000 policy and your client really does need a fusion surgery, and so you don’t want to go hire an expert and then hire a live care planner and do all that because that’s going to deplete the recovery. Why would you-

Bob Simon (12:52):
Yeah, you make the demand when the value of it is there for them to pay it.

Tom Dickerson (12:55):

Bob Simon (12:55):
And sometimes it’s just the police report and the emergency room record might be enough. It’s like, “Look, this person had arms, had wrist surgery, you have 15 policy. Here’s all you need.” And when they write back, like Chelsea says, we need an extension, can you send the medical bills? It’s like, what does this have to do with anything?

Chelsea Dickerson (13:09):
That has nothing to do with anything. Adjusters love medical bills, they want to fight with you on the medical bills. And that is just the sign of, oh, they’re going down that track again, of not focusing on what matters in the case.

Tom Dickerson (13:21):
That’s another kind of bad faith topic that’s come up lately is, a lot of the insurance companies will take medical bills and they’ll use their computer systems to arbitrarily reduce the bills. It could be down to Medicare rates, it could be down even lower than that. They can basically adjust them however they want to in terms of their evaluation. But the truth of the matter is, in most jurisdictions, your measure of damage is what the bills actually are, or at least what has been paid. In Kansas and Missouri, the judge has let in all that evidence, the bill, the paid, the adjustments, all that stuff. But you might have a case where there’s $50,000 in actual paid medical, and then you have the insurance company say, “Oh no, the reasonable value of that medical is actually more like 30,000.” And it’s like, “Well, hold on a second, my client has actually paid this, this is real damages.”

Bob Simon (14:07):
You’re telling me insurance carriers are paying more than the value? Is that what you’re saying? That’s stupid. Yeah. I mean, so I know we’re out of time, you guys are pressed in your transit in and out of Los Angeles here in Kansas City. So how do people get a hold of you guys?

Chelsea Dickerson (14:20):
Well, we have a wonderful website we’re very proud of, and we’re revamping it a little bit here. That’s part of our quest here in LA and what we’re doing. But yeah, our website, we’re on Instagram, we are on, we have Facebook, yeah.

Bob Simon (14:38):

Tom Dickerson (14:38):

Bob Simon (14:42):

Tom Dickerson (14:43):
Oxon, it’s O-X-T-O-N, And then always, I’m like an open book. Anybody can call me at any time. My cell is 785-691-7047. Love to talk about bad faith stuff. So always give me a call.

Chelsea Dickerson (14:43):
Yep, absolutely.

Bob Simon (14:58):
Very good. Well, Tom and Chelsea, thanks for coming on. If you have any questions, go to, click that button and we will get back to you. Thank you guys for coming in.

Chelsea Dickerson (15:06):
Thank you.

Tom Dickerson (15:06):
Thanks Bob.

Chelsea Dickerson (15:06):
Thanks for having us.

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