Surveillance can provide significant value for insurance companies and their defense teams; however, the process is often trickier and more nuanced than television depicts. At CLM’s 2023 Focus Conference session, titled, “Surveillance: The Good, the Bad, and the Ugly,” presenters Stanley Kanterman, vice president, Carrier Specialty Services, LLC, and Bharat Varadachari, attorney, HeplerBroom LLC, explained surveillance tactics, as well as potential pitfalls and issues that come from using surveillance.
Avoiding Surveillance Pitfalls
Kanterman identified the following pitfalls to avoid when it comes to conducting surveillance:
- Using an unlicensed investigative company.
- Using an investigative company that does not have people working on their payroll. Not only do you risk breaking state regulations and losing your license, but you also risk not being able to find the investigator because they are not an employee. They may be working for several different people, and when you need them for a deposition…they might not be available.
- Not having insurance for your company. An investigative company is acting on your behalf, and if they do something wrong, you will be brought into the suit.
- Not understanding bad faith regulations in your state, which can lead to severe problems.
- Not understanding how juries may view surveillance as an offense and invasion of privacy.
A few additional points for professionals engaging in: Social media data mining of minors is illegal; surveillance must be performed in public spaces unless you are invited into a private space; and surveilling in places that are technically public but are still likely to invade privacy, such as places of worship, should be avoided.
“The whole thing I stress about surveillance,” said Kanterman, “is partnership. Getting to know who your vendor is; getting to trust your vendor. Making sure, besides the normal vetting that your company does on a vendor, that your vendor understands what your [goals] are and that they understand what your requirements are and what you will and will not accept.”
Surveillance Tactics and Tools
“If [you’re] going to get surveillance, the key is that you want to get information, you want to get the plaintiff’s deposition and figure out what [the subject’s] routine is,” said Varadachari.
There are some challenges that can come with the video surveillance technique, however, especially post-COVID-19. According to Kanterman, “If you are a person who is working from home and you’ve been there for three years, you know every car that parks up your block. If I put a [person] in a car halfway down the block, you’ll spot him in 10 seconds right when you walk out the door.” However, Kanterman continued, “If I [place] a drop car…and it’s there for a day, you may be suspicious but the second day it’s still there, you might think it’s somebody visiting that you don’t know about.”
Data mining is also important, especially before conducting video surveillance. “You need to find out a lot of information, [such as] is your claimant actually living at the house you’re doing surveillance on?” Kanterman added. “We recommend finding out about the family history. Attorneys who do plaintiff work will tell their clients to change their Facebook account to private [so] nobody can get in there. But we don’t just search them—we search their entire families.” However, he emphasized, you cannot friend request any of them or send them private messages, as it is illegal to do so. Other surveillance tools include GPS trackers, license plates, E-Z Pass tracking, social media, phone records, and location.
All in all, Kanterman advised the audience not to, “rely on…investigators. Rely on your knowledge as an experienced claims person or as an attorney [to know], ‘What is admissible? What are the laws in the state that I’m in?’ Partner with the right people. Partner with the right law firm [that] understands the laws. If you’re working on fraud cases, then they [should] understand what insurance fraud is and how the juries look at it.”