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The Zero Sum Game: Allstate's McKinsey Documents

HERE IS THE LINK TO THE ALLSTATE MCKINSEY DOCUMENTS; YOU MUST AGREE TO VIEW THE DOCUMENTS FOR NEWS OR INFORMATIONAL PURPOSES:  CLICK "ACCEPT" AND YOU WILL BE DIRECTED TO A PAGE CONTAINING ALL OF THE DOCUMENTS MENTIONED HERE

See also Tort Burger's Post on the Zero Sum Game Aspect of this Controversy here.

I have had a lot of traffic to this post and comments here and elsewhere on the internet about it and the Slabbed post it excerpts.

Because I never meant to "take sides" on a matter I know next to nothing about, I'm now including along with the Slabbed excerpt originally posted, an excerpt of a recent article from Bloomberg.com - Allstate Releases McKinsey Records (etc.) below.        

This post was originally meant to highlight Allstate's (or its consultant's) unfortunate use of the term "Zero Sum Game," when discussing claims handling procedures.  My original comment was that "those who continue to play it often get their  . . . uh . . . soft parts caught in a wringer."

The Slabbed post highlights the damage done to an admitted "Zero Sum Game Player" who is engaged in a human-harm-cost-benefit analysis.  The Pinto punitive damages award came readily to mind because the case was decided while I was in law school learning about negligence.      

For my non-attorney readers, I need to stress that it's not wrong to engage in a cost-benefit analysis for the compensation of injury under a negligence system.  In fact, this is what the law itself (and injured Plaintiff's attorneys) do, i.e., "calculate" the risk of harm + the potential severity of the injury against the cost of avoiding that harm.

People react badly when they see that type of calculation being applied to human injury or the loss of human life because those losses are considered to be "incommensurable," i.e., no amount of money can recompense someone for, say, the loss of a child. For an excerpt from my own article discussing the concept of incommensurability -- The Cost of a Thing is Your Life, click here.

I'm hoping my non-attorney readers will understand that these formal monetary calculations are routinely made by businesses and governments when making decisions about how much risk to human life is worth taking when they engage in potentially dangerous activities for the purpose of creating a significant benefit for many. 

That said, I give you again this excerpt from Slabbed's post on the McKinsey Allstate document furor -- The Herald Tribune Takes the Allstate Challenge --

In a previous post that received a notice in the Silicon Investor BB I spoke of insurers and their lawyers using the court system as instruments of institutionalized bad faith. Indeed Allstate has taken much criticism for ignoring lawful subpoenas over these documents as well as substantial fines as noted by Ms St John. This brings me to the beginning of the main story.

For more than a decade, Allstate Insurance Co. kept a secret from its auto policyholders — a national strategy to force customers to accept reduced cash payouts or face years in court.

Thousands of pages of Allstate documents reviewed by the Herald-Tribune detail how the nation’s second-largest insurer systematically cut payments to customers as a way to boost profits.

The documents describe a two-pronged strategy.

First, the company evaluates claims with a computer program designed to reduce payouts by as much as 20 percent of what the company once paid for the same injuries.

Second, Allstate pushes policyholders to accept quick settlements without the help of lawyers. Policyholders who try to fight for more money face Allstate attorneys coached to refuse to negotiate and to drag out litigation.

The approach often forces car accident victims to take what Allstate offers right away or spend years in court while their bills go unpaid — a strategy Allstate spelled out in guidelines for claims adjusters that “forces the claimant and attorney to think about the obstacles they must overcome …”

Indeed it appears we have a road map of how tort reform is being used against us. Limits on damages only make it easier for these large insurers to get away with outrageous behavior. The story continues:

It was a “Zero Sum Economic Game. Allstate gains … others must lose,” declared a consultant’s PowerPoint slide from a 1994 presentation to executives.

During the next five years of Allstate’s claims overhaul, the same consultant, New York-based McKinsey & Co., chose confrontational words to describe the new system. In PowerPoint presentations and discussion papers drawn up for Allstate executives, McKinsey used “boxing gloves” to characterize how Allstate should treat policyholders who balk at settlements. For customers who hired lawyers, McKinsey urged, “align alligators,” adding these instructions: “sit and wait.”

The documents also show:

Allstate removed much of the discretion of local claims agents to set payouts, requiring them to base their recommendations on a computer program called Colossus. Under that program, average payouts for bodily injuries dropped more than 20 percent in the first few years, internal documents show, a big step toward reaching McKinsey’s goal of “establishing a new fair market value” of such injuries.

Allstate recognized that when an injured driver hired a lawyer, the insurer lost money. In repeated presentations to Allstate executives, McKinsey coached tougher and increased legal action. By 1996, Allstate had doubled its legal force, hiring 225 more lawyers. “The bottom line is that Allstate is trying more cases than ever before,” a corporate newsletter said . . .

For full post from Slabbed click here.

Bloomberg.com's article, Allstate Releases McKinsey Records (etc.) Update No. 2 is here.

Excerpt from Bloomberg.com article below:

Allstate Corp., the second-biggest U.S. home and auto insurer, released 150,000 pages of documents sought by opposition lawyers and company critics related to McKinsey & Co.'s review of claims-handling practices.

McKinsey suggested strategies for the company to become more profitable by paying less in claims, according to videotaped evidence presented in Fayette Circuit Court in Lexington, Kentucky, in a civil case involving a 1997 car accident. Lawyers for policyholders said Allstate's previous refusal to release the documents showed the company wasn't treating its customers fairly. The insurer has said the documents include trade secrets.

``Public criticisms by people with a vested interest in creating an inaccurate picture of the company's claim practices have been based unfairly on only snippets from the documents taken out of context,'' the Northbrook, Illinois-based insurer said in a statement today. ``Because of the need to address misunderstandings resulting from the growing misplaced focus by our critics on very small pieces of the whole, we have decided to make the documents public.''

One slide the consultant prepared for Allstate was entitled ``Good Hands or Boxing Gloves,'' and recommended the insurer put on ``boxing gloves'' to deter about 10 percent of claims deemed to be exaggerated, padded, or fraudulent, according to portions of the report shown to the Kentucky jury. For more than 50 years, Allstate has advertised its employees as the ``Good Hands People,'' telling customers they will be well cared for in times of need.

Rising Claims

The strategy proposed by McKinsey would ``send a message to the attorneys of our proactive defense stance'' in cases dealing with minor impact soft tissue injuries, the consultant said in the document. Lawyers would have to ``think about the obstacles they must overcome to recover significant settlement or the benefits of a smaller, walk-away settlement.''

Allstate implemented the plan in the 1990s because studies showed more people were submitting claims even though accident rates were declining and cars were safer, Allstate lawyer Floyd Bienstock told the Kentucky jury. The McKinsey report found Allstate was overpaying bodily injury claims by 16 percent, Bienstock said.

``It was never a plan to intimidate people,'' he said.

To continue reading, click here.

Comments (34)

Read through and enter the discussion by using the form at the end
Sop81_1 - April 7, 2008 2:36 PM

Thank you for the mention today Ms Pynchon. Allstate appears to have put itself in a short term no win situation by finally releasing the McKinsey docs. It will be interesting to see if this is a true step toward resolving the litigation in New Mexico and Missouri and their problems in Florida.

Vickie - April 7, 2008 3:43 PM

As a "neutral," i.e., a mediator who attempts to assist parties resolve disputes in which an insurance carrier is often involved, I am sensitive to how sensationalizing this type of disclosure can be.

As a litigator with 25 years of professional practice under my belt, I also know that there are times when the best course is to bite the bullet and disclose the full circumstances forming the context for wrogdoing.

As to the particulars contained in your post and the sources cited there, it would greatly concern me as a matter of public policy if an insurance carrier were in fact guilty of ARBTIRARILY delaying or denying the payment or claims to the deserving or of bullying claimants with the intention of forcing concessions not justified by the facts of the particular claim at issue.

On the other hand, the effort to establish a "fair market value" for injuries does not seem misguided, let alone wrongful. This is what workers' compensation systems have been doing since their inception.

In a system where the skill of the Plaintiff's attorney, rather than the severity of the injury, guides compensation, establishing a "fair market value" for injuries might well lead to results that are more "fair" and outcomes that are more "just." A "fair market value" system of compensation would also fulfill an insurance carrier's "mission" of spreading losses equitably among policy holders so that injured or ill members of the insured "pool" will be reasonably compensated without undue burden being placed upon healthy and uninjured policy holders.

I would, of course, condemn any carrier practice that treats the the justice system as a bludgeon to maximize profits at the expense of those who deserve to be compensated. If that is the case (and I do not know the facts well enough to say that it is) the public should be justifiably outraged and calls for reform should be promptly made and answered.

Were Allstate taking MY advice, I'd say that its best interests would be served by acknowledging any clear wrongdoing, publically apologizing for it; and, setting in motion some sort of program to make amends.

Throughout, it is beneficial for all of us to recall that corporations are capable of acting only at the direction of and with the assistance of people; that people are fallible; and, that those who have failed their policyholders here should answer for either their inattention to or their positive disregard of the rights of their insureds and those who may have been injured by them.

Sop81_1 - April 8, 2008 7:07 AM

Excellent points Vickie. It is worth noting that much of McKinsey applies mainly to third party claims though the payment settings in Colossus impacts both first and thrid party claims.

The public backlash against purposeful claims lowballing manifested itself most recently in Washtington State with the passage of R-67, the Insurance Fair Conduct Act.

IMO this issue will continue to manifest itself in the popular media until the problems are are addressed.

sop

claimsguy - April 8, 2008 1:58 PM

Vicki:

Are you suggesting that Allstate, by seeking to vigorously contest third-party claims that it believes are unreasonable, has engaged in some sort of wrongdoing?

Vickie Pynchon - April 8, 2008 2:32 PM

Claims Guy,

Even if I hadn't spent nearly a decade representing insurance carriers in litigation contesting coverage, I would never say that a carrier that "vigorously contest[s] third-party [or first party] claims that it believes are unreasonable" is "engaged in some sort of wrongdoing.

I believe that Allstate has been charged with arbitrarily delaying or denying claims for the purpose of unreasonably depressing pay-outs to parties who have valid claims.

As I said, I do not know enough about these charges to opine one way or another.

I have worked with many many claims adjusters and insurance executives who quite brilliantly negotiate the the often extremely delicate task of serving their insureds (and those injured by their insureds) at the same time as they serve the interests of their shareholders. Most people work honestly, diligently and in good faith. Some don't.

Distinguishing one from the other is often the job of a judge or jury.

Helping both sides realize they each bear responsibility for the conflict that has arisen between them and that one's gain is not necessarily the other one's loss (i.e., that life needn't be a zero sum game) is my job.

Thanks for dropping by and commenting.

claimsguy - April 8, 2008 5:51 PM

Vickie:

If you aren't suggesting that Allstate has engaged in wrongdoing, then what are you talking about when you say "Were Allstate taking MY advice, I'd say that its best interests would be served by acknowledging any clear wrongdoing, publically apologizing for it; and, setting in motion some sort of program to make amends."

That advice doesn't make much sense unless you are suggesting they have done something wrong.

Vickie Pynchon - April 8, 2008 6:48 PM

Dear Claims Guy,

Thank you for giving me the opportunity to make myself clear; something I obviously have failed to do.

What I meant to say was "acknowledging clear wrongdoing, IF ANY . . . " I can see that the phrase "acknowledging any clear wrongdoing" might lead a reader to assume that I am assuming a wrong was committed.

IF the documents reveal wrongful conduct (something I have no opinion about because I have insufficient knowledge of the facts) and IF Allstate asked my advice, I would suggest acknowledging wrongdoing, etc.as I state in this too hastily penned comment.

I apologize for the confusion -- which is mine all mine. Please do feel free to express your concerns and opinions here if you feel it appropriate for you to do so. I was hoping this would generate a conversation!

All best,

Vickie

Chris Lemens - April 9, 2008 3:37 PM

Vickie:

It seems to me that, if we were taking a truly rational approach to valuing an insurance claim, the fact that the injured party has an attorney should be irrelevant to the claim's worth.

So, it also seems to me that a truly rational insurer would:
- use strong processes to ensure that similar claims get treated similarly,
- put its valuation on the table immediately,
- change that valuation only if new and relevant information develops,
- encourage the injured party to take the settlement, and
- try everyting that doesn't settle based on the fair valuation.

I don't see that an insurer should design its processes to reward good legal advocacy, when its responsibilities are to the policy holders and (more broadly) the injured parties. If the above were an insurer's approach, it would be appropriate to tell the injured party that the valuation won't rise in response just because the injured party hires a lawyer -- all that will happen is that the plaintiff's counsel will get a cut of the existing settlement offer. Right now, it seems like you must get a represented in order to get a fair deal out of insurance companies. Having lawyers take their cut as the gatekeeper to the system is neither efficient nor fair to the injured party.

While I can't comment on Allstate's practices, and it seems from press reports that McKinsey's recommendations were not really in the spirit I outlined above, I can see it being appropriate for an insurer to do many of the things that press reports say Allstate did.

Vickie Pynchon - April 9, 2008 4:46 PM

I agree with you Chris in a perfect world. When I recently asked a claims adjuster what the most important consideration was to his settlement valuation, he said "after the facts and the law -- the salesman."

Trial is the better or worse alternative to a negotiated resolution of the dispute. There are some dynamite trial attorneys who can pull rabbits out of hats for their clients and others who find only confusion and bewilderment in their baseball caps.

A savvy claims adjuster knows how to evaluate the claim "purely" on its merits, but also to value the risk to the company should the case proceed to a jury trial, at which point factors like the venue and prior verdicts in that venue and the ability of the plaintiff's attorney to deliver for his client become critical non-case related settlement considerations.

It would be great to live in that perfectly rational world, but none of us actually do, as the economists themselves are finally recognizing.

Thanks for dropping by to comment.
I keep hoping this blog will encourage participation and a greater degree of communication among attorneys, claims people, mediators, arbitrators and the people who rely on all of us to find the most just solution possible in an imperfect world.

Best, Vickie

insured - May 19, 2008 11:30 AM

Fellow blog readers,

I am a claimant and I have to say at this point after dealing with Allstate specifically on multiple levels the McKinsey report seems to tie together a lot of my families experience with a claim.
We fall into the category of boxing gloves.

Allstate undoubtedly utilizes deliberate practices designed for claims avoidance. I only recently became aware of the documents but have suffered the ongoing effects of Allstate's practices for a year and counting.

A July 2007 report by J. Robert Hunter and the "good hands to boxing gloves" books are very interesting reads.

The report by Hunter reminds us that the purpose of insurance is to spread the "risk" but company strategies, with Allstate at the forefront, are eliminating their risk exposure while boosting record profits at the expense of insureds.

In my mind it is very clear that Allstate is culpable of wrong doing and I think all should wary. We need to recognize our position as consumers despite income class, since these practices pertain to all of us. Companies such as Allstate speak only in numbers and will not take notice until they are faced with lack of new business premium, drops in retention ratios, and share prices trading below par.

The problem is unless you are personally involved as a claimant the issue is peripheral at best.

Plaintiff’s attorneys are viewed as over dramatizing the insurer’s methods to portray as “evil”. The defense attorney’s representing the insurer are viewed as reciting corporate propaganda. The media is viewed as sensationalizing a “non-issue”. The public is viewed as unable to comprehend the complexity of insurance and the nature of legal, ethical and fair business practices.

Are any of these statements true? Perhaps. It’s easy to speculate and form opinions based on the scope of knowledge we have and leave the rest to assumption and conjecture. However, if you want to know the true beast behind the hype then seek out those who have suffered at the hands of corporate profitability and bottom line.

In what bizarre logic do we think that a victim of any type of “covered” event should have to accept a “settlement” that is less than the cost to make them whole? Why should or would I care about Allstate’s bottom line? So because of the position and inability to negotiate for several years I should sacrifice and “cut corners” on my compensation? If that is the case then why did I pay insurance premiums to begin with? What is the benefit?

Companies such as Allstate seem to view payment to their insured as a favor which should be negotiated which is rather contradictory to the purpose of insurance. I have no qualms with insurance companies being “for profit”, but with the amount spent to reward agents (like trips to Paris and such) for increased sales it leaves a very sour taste in the mouth when trying to swallow why your life can not be made whole.

A year ago our home was destroyed by a fire. Local officials deemed it electrical in nature. Allstate deemed it Arson. Like so many middle class families with children we are paycheck to paycheck and struggling to make it in this economy.

According to Allstate that gives us motive. Since my wife was a stay-at-home mother that gave her opportunity since she was the last one at home, and during her all-day interrogation by Allstate’s attorney the fact that she wasn’t sure on the purchase amount and origin of every single item we owned was dubbed “material
misrepresentations”.

The good hands quickly turned to an accusatory finger when it came time to start settling the claim. The home was salvageable, however they chose to ignore and dig in their heels and I have watched the home I loved disintegrate and rot beyond repair.

According to Allstate’s CCPR we made the fatal mistake of turning to representation. The ironic thing is that this was in direct response to the demeanor of Allstate’s attorney’s. Playing hardball from phone call one was enough to clue us in to the nature of things to come. It has only been recently, after the fact, that I have come to find that we are not alone. We are a small segment of an unheard collective.

Allstate’s behavior is the very definition of “Unfair claims settlement practices” and the fact that they are willing to absorb huge fines and drag out litigation does not negate their culpability. The percentage of claimants who are deliberately undervalued in claim settlement is a violation in itself in many states. The claims settlement practices of some of today’s biggest insurers, however, are also criminal.

Allstate demanded documentation that was impossible to provide and ask us to prove we did not burn our house down. As if an insured who has suffered a catastrophic loss has some sort of “ace in the hole” they can lay down on the table and solve all issues. Allstate refused to “investigate” any information that could lend credence to our rhetoric and instead focused solely on finding grounds for denial.

The court docket moves slowly and at this point it looks like it will take approximately 3 years to settle the claim. That is an appalling thing to do to a victim of tragedy for propulsion of bottom dollar profits and share prices. Every move this company makes is calculated to accrue maximum retention of “premium” dollars. Little by little state after state people are reading these documents and paying attention and those who are victimized are being heard.

The bottom line is when you have a tragedy and the protection you purchased doesn’t protect but instead investigates vehemently every crevice of your life searching for any reason to have a justifiable denial how protected are you? What remedies do you have? You can hire an attorney, file a bad faith lawsuit, and petition your local insurance commissioner but in the 3 to 5 years that your litigation drags on with deliberate delay tactics….who bears the burden?

If you haven’t experienced first hand one of the worst nightmares you can imagine then your understanding is peripheral. When you have nothing but the clothes on your back and a policy of insurance that protects shareholders and company profits more than the insured the answer is you are not protected at all.

Larry B - May 28, 2008 12:09 PM

As a contractor for over 37 years as well as an insurance professional for 20, I can say that insurance company in question does indeed intentionally and improperly delay, stall, intimidate, deny, underpay and, in general, make it as tough as possible for property owners with legitimate claims - in my opinion, of course. Katrina blew the lid off and exposed the P&C insurance companies nonsense once and for all. Look up HAAG Engineering, ISO / Xactimate, E. A. Renfore, mortgage companies, loss draft processers, McKinsey & Co. / Lenny Mendonca, bad faith insurance commissioners (Google), and you will see how they all tie in together. Intersting to say the least.

Jeff Kubu - December 18, 2008 11:01 PM

I am currently fighting the Boxing Glove situation as we speak over a boat claim. The claim took place on July 16, 2007 and resulted in them send me a check unsolicited in the mail for about 1/3 of what it should of been in hopes that I would cash the check. I instead turned it over to my attorney only to have Allstate say that they mistakingly sent the check out. We are still batteling it out, any and all input would be greatly appreciated.

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