Experienced subrogation lawyers Jason Sullivan and Rebecca Wright discuss the effect that social media is having on subrogation recovery and its potential impact on claims in AM Best’s podcast, “How Social Media is Changing Insurance Claims Subrogation.” Sullivan and Wright speak on the risks social media use presents to liable parties in subrogation claims, and more importantly, how social media can be a source of information during the investigation phase of a subrogation case. They also discuss the ethics of gleaning information from social media during a subrogation investigation.
How is Social Media Affecting the Field of Insurance Law & Subrogation?
Rebecca defines social media, in general, as websites and apps that allow users to create networking content. And it does not only apply to Facebook and Instagram anymore, as business-oriented sites like LinkedIn also fall in this category.
Also, they note, crowd-sourcing apps like Waze share some characteristics, with users posting content to communicate. The lines are blurred and constantly changing, which every insurance attorney knows makes for more complicated routes to recovery in subrogation cases.
While social media offers new opportunities in identifying and investigating tortious parties, it can also cloud the waters. How do you know you have the right John Smith? Cross-checking known information with social media profiles can confirm you do, in fact, have the right person. In some states, service is now allowed via social media, though still with several asterisks.
Using Social Media Data in Your Subrogation Case: Ethical or Unethical?
Rebecca and Jason go into detail about the ethics of how data from social media is acquired and used in subrogation cases. They advocate remaining open and honest about who you are and what you are looking for. Regardless of a lack of specific laws on social media use in subrogation litigation, gathering information surreptitiously is unethical.
So then, is it more ethical to ignore social media? Wright and Sullivan argue that, no, simply ignoring the applicability of social media to a given subrogation case can be just as unethical as misusing it. Ethically, it is a path a subrogation consultant should explore in every case, while remaining above-board in their acquisition of any social media data.
Wright talks about the effects of social media specifically on insurance subrogation cases. She gives the example of disability claim fraud, and using Facebook photos much in the way a PI would follow someone to see if they were truly still disabled from the incident. Similarly, she points out that photos and videos of incidents can help identify witnesses and relay the factual reality of the event that precipitated the subrogation claim damages.
You can listen to the entirety of this discussion on the ever-changing field of insurance subrogation on YouTube. And be sure to check out Rebecca and Jason discussing other subrogation topics on certain episodes of Rathbone Group’s “On Subrogation” podcast and YouTube channels.