EPISODE NOTESJames Barbieri from independent adjusting company Claims Advantage discusses the complexity of handling negligent security claims.

TranscriptAnnouncer:  This is the “Best’s Insurance Law Podcast,” brought to you by Best’s Recommended Insurance Attorneys.
John Czuba:  Welcome to Best’s Insurance Law Podcast, the broadcast about timely and important legal issues affecting the insurance industry. I’m John Czuba, managing editor of Best’s Insurance Professional Resources.
I’m pleased to leave with us today Jim Barbieri from independent adjusting and investigation company, Claims Advantage in Georgia. Jim is the President and CEO of Claims Advantage. He’s a former police officer and has a BS degree in criminal justice.
Mr. Barbieri is also a certified fraud investigator adjuster and has been conducting SIU investigations for over 30 years. Jim, thanks so much for joining us again today.
Jim Barbieri:  Hi, John. Thanks for having me.
John:  Today’s topic is negligent security claims investigation. Jim, let’s start out. Can you define for our audience, what is a negligent security claim?
Jim:  A claim of negligent or inadequate security usually involves an insured who fails to take proper precautions or security members to prevent violent crimes. The key is to prove that the property owner was aware of the potential for crime and the lack of security on the property that may have allowed the crime to occur.
John:  Jim, what types of negligence security claims do you investigate?
Jim:  John, the most common type of negligent security claim is at a commercial retail establishment. When a business invitee enters a place of business such as a retail store, could be a hotel bar, could be a shopping mall, they have a reasonable expectation of security that the owner must provide to protect them from foreseeable harm.
In hotels, the management has a greater degree to provide security to hotel guests. As an example, if a hotel room door lock was defective and allowed a perpetrator to enter the room and sexually assault a guest, that hotel could be liable for negligent security.
Another common type of negligent security claim in which I’ve handled several of these types of claims are shooting investigations at apartment complexes. In those cases, it’s important to determine the victim status. Is he a tenant, or he or she a tenant, visitor, or a trespasser?
Another type of negligent security claim occurs at retail stores. I had a claim where a husband parked his vehicle on the corner of the building on a drugstore and his wife entered the store to shop. The husband got robbed and killed.
The plaintiff argued inadequate lighting on the corner of the building contributed to this violent crime, and furthermore, the business was in a high-crime area, and the owner should have taken greater care in providing security and adequate lighting.
A negligent security claim also could involve a bar fight or fight at a restaurant where the plaintiff was seriously injured or killed and the bar failed to provide bouncers, or security, or adequate security measures.
John:  Jim, how do you handle a shooting investigation in an apartment complex?
Jim:  The first thing I do when I handle a complex shooting investigation is determine the status of the victim, as I mentioned previously. The victim could be a tenant, a guest, or a trespasser. I then determine the extent that the landlord or management company owes a duty of security.
As an example, I handled a case in Georgia where tenants lived, and boyfriend was shot and killed in the parking lot during an armed robbery attempt. In that case, the boyfriend picked up the tenant at work. It was three o’clock in the morning.
He drove through the open, broken apartment complex gate. Parked in the parking spot, got out, and three guys approached with guns, and a gunfight ensued. Unfortunately, the boyfriend was killed. I took a statement from the perpetrator of that crime. Actually, she was the getaway driver from prison.
She told me that the only reason why they entered that complex was because the gate was broken and stuck in the open position. The only problem with that case for the plaintiff was that the decedent’s estate did not have any legal standing in that case because the boyfriend was not on the lease agreement and he was not considered to be a tenant.
Therefore, the complex did not have a duty to provide security to this guest. However, the girlfriend, who was injured during the shootout, had a valid claim, as she was the actual tenant and the complex had a duty to provide her with adequate security.
I had another case in Atlanta. The facts were similar, but somewhat different, where the perpetrator entered an apartment complex through a broken security gate. He shot his way through the victim’s apartment door. We’ve researched crime statistics from the police department and determined that this apartment complex was located in a high-crime area.
It’s very important to examine the types of crimes in the area. We are more concerned with violent crimes such as robbery and sexual assault. However, people say that burglary is a property crime, but the definition of burglary is unlawfully entering a premises with intent to commit a felony therein, and this could involve potential injury to the occupants.
The purpose of getting the police log or crime statistics, usually in a one-mile radius, is to determine if the insured should have been aware of the risks to safety of their tenants. During the investigation, it’s important to determine whether there is any type of relationship between the perpetrator of the crime and the victim tenant.
In that case where the guy shot his way through the door, the tenant apparently went to a party one time and met the perpetrator briefly, but she did not invite him into the apartment, and he shot his way through the sliding glass door. That did not come into play, that defense.
It is also important to show whether the property manager was aware of the broken gates that were stuck open. In both the aforementioned apartment complex shooting cases, I obtained statements from several tenants who said that they complained verbally and in writing to the management about the inoperable gates.
In the first case discussed, where the boyfriend was killed in a shootout trying to protect his girlfriend, tenants said that they moved into the apartment complex because the marketing literature boasted a safe and gated community. Only problem was that the gate never worked, and it’s a brand-new apartment complex.
In that case, when I went to the apartment complex, there was a security guard with the flashing lights on the car, and they were checking everybody going in and out, but that was a little too late. The other part of the investigation on the apartment complex is determine the status of the perpetrator of the crime.
If he or she is an employee of the complex, such as a maintenance worker who has access to keys to the apartments, and then sexually assaulted a tenant, generally, the employer is not liable for the criminal acts of an employee unless they did something negligently.
If there was no request or authorization to enter the apartment, that would put the landlord on notice as they are supposed to control the employees and access to keys. The insured may be liable if they did not do an adequate background check and the employee has a criminal history for violent crimes.
John:  Jim, what if the victim is a trespasser on the insured’s property? Would they then have a valid claim?
Jim:  Generally, no. A trespass would normally not have a valid claim for lack of security because they should not have been on the property at the time of the incident. I just handled a shooting case at an apartment complex in New York, where a claimant was shot in the breezeway of an apartment building.
In that case, all the attendants I interviewed were not familiar with the victim, nor did they know why he was in the breezeway of the building. One tenant overheard a scuffle in an argument outside her apartment door, and it sounded like the shooter was stealing some type of bag from the victim.
In that case, the apartment complex would not owe the victim a duty to provide security because it appears that this was a drug deal gone bad.
John:  Jim, previously, you mentioned that the business operator or property owner might be aware of a foreseeable criminal attack. What exactly do you mean by a foreseeable criminal attack?
Jim:  I previously mentioned that as part of our investigation, we usually request crime statistics, so police call logs from the local police department for a one-mile radius around the establishment or apartment complex to ascertain if the crime was committed in a high-crime area.
In the Atlanta case that I handled involving the broken gate, we determined that the general area surrounding the apartment complex has a high violent crime rate. Therefore, the landlord or property maintenance company should have been aware of the potential for violent crime to occur and should have secured the property by repairing the front gate or providing security guards.
If the business operator or property owner does nothing to increase protection against this known threat, such as provide or increase security, they may be held liable. The plaintiff needs to show that the landlord or insured had constructive knowledge that a violent crime could occur to the claimant or plaintiff.
John:  Jim, what does a plaintiff attorney need to show in a negligent security case?
Jim:  Basically, the defendant was legally required to provide adequate security at the location. They also need to show that the defendant did not provide reasonable security measures. The plaintiff injury occurred as a result of the defendant’s inadequate security measures.
John:  Jim, what are some examples of negligent security claims that you’ve personally seen?
Jim:  At different establishments, I’ve seen lack of security cameras, malfunctioning security equipment, untrained or unqualified security guards, or lack of security guards, especially at these apartment complexes, where they don’t have any security in a high-crime area.
Several years ago, I handled a sexual assault case in Rhode Island, where a bedroom window lock was broken in an apartment and the perpetrator entered through the window and sexually assaulted a female tenant.
She had just moved into the apartment and they should have done an inspection, which would have revealed the security hazard. Other examples would be inadequate on missing lighting.
As I mentioned in the pharmacy shooting case, the light was out on the corner of the building, and that may have contributed to the opportunity for the crime to be committed.
I mentioned a few cases of broken fences or gates in apartment complex shooting investigations. In other cases, there may be no alarm system or malfunctioning alarms.
John:  Jim, thanks so much for joining us today.
Jim:  John, thanks for having me. It’s always a pleasure being on this podcast.
John:  You just listened to Jim Barbieri, president and CEO of Claims Advantage in Georgia. Special thanks to today’s producer, Frank Vowinkel. Thank you all for joining us for Best’s Insurance Law Podcast.
To subscribe to this audio program, go to our web page, www.ambest.com/professionalresources. If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at [email protected]. I’m John Czuba, and now this message.
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Transcript:

John Czuba: Welcome to “Best’s Insurance Law Podcast,” the broadcast about timely and important legal issues affecting the insurance industry. I’m John Czuba, Managing Editor of Best’s Insurance Professional Resources.

We’re pleased to have with us today James Barbieri, from independent adjusting and investigation company, Claims Advantage, Inc., in Georgia. Jim is the president and CEO of Claims Advantage. He’s a former police officer and has a BS degree in criminal justice.

Mr. Barbieri is a certified insurance fraud investigator adjuster and has been conducting SIU investigations for over 30 years. Jim, thank you very much for joining us again this morning.

John: Today’s discussion is the importance of effective interviewing and interrogation in the insurance claims process. For our first question today, Jim, what is the purpose of an interview versus an interrogation when handling a potentially fraudulent insurance claim?

Jim: John, the interview is basically an informal conversation, with the main purpose of gathering information. As I mentioned in other AM Best podcasts, it’s imperative that the investigator prepare for the interview and conduct an extensive background investigation of the subject. You need to do your homework before any interview is conducted.

During the interview stage, you have to let the subject talk, and don’t interrupt. Let them get the story out, and ask general questions, like, “Tell me what happened in the accident.” Whatever, slip and fall, automobile accident. Obtaining information is the essential goal of any investigation.

Interviews are the most important stage of an investigation, because it is when you establish a rapport with the subject and gather information about the claim. For example, if I’m taking your statement, John. Small talk, I say, “Hey, John, I like your tie. Where did you get it?”

If you’re from, say, Princeton, New Jersey, as an example, I talk about the beautiful farmlands in that area. Do you really think I care about John’s tie or the beautiful farmland in Princeton, New Jersey? No. I’m just trying to establish some common interests with the interviewee, which helps them to relax and establish a feeling of trust.

The interview is generally non-confrontational. As you establish a rapport with the subject, he or she will likely be more cooperative in providing information that is essential in the investigation of the case.

You all heard the expression that you get more with sugar and water than with vinegar and baking soda. If you approach the interviewee aggressively and evade his or her personal space, the subject will become closed off and defensive, and it will be very difficult to gather the pertinent information.

Once the interview is completed, and you uncover inconsistencies, then the investigator can transition into an interrogation if the investigator suspects that the interviewee perpetrated a fraud. The main purpose of an interrogation is to get a confession.

While maintaining a professional demeanor, the interrogation becomes more confrontational and direct questions are asked. In past interviews and interrogations that I have conducted on fraudulent insurance claims, I have always focused on the minute details of the incident.

For example in a staged collision, the fraud participants will rehearse the most basic details of the collision. The investigator needs to ask detailed questions about seating positions in the vehicle. In several cases, the alleged passengers gave different stories of where people were sitting in the vehicle. John may say, “I was sitting in the right front passenger seat,” while Frank said that John was sitting in the left rear seat.

Also, the investigators should ask questions about the accident scene, as many of the jump in passengers, which as you know from previous podcasts, a jump in is a person that was not in the vehicle. They were never on the scene, and they’ll give different descriptions of the area.

I always ask, “Was the vehicle moved to the side of the road after the accident? Did they stand in the street while they were exchanging information, or were they standing behind a certain vehicle?” 9 times out of 10, they will provide different answers.

John: Jim, what type of preparation goes into an initial interview?

Jim: John, as I previously said, the investigator needs to do his or her homework and get background material on the interviewee. Knowledge of the subject’s past claims or criminal history can be used to assess his or her credibility during the interview.

Once your homework is done, then you need to choose a place to conduct the interview that is convenient. Could be a quiet coffee shop, a local Dunkin’ Donuts, a Starbucks near the subject’s home that is not threatening to the interviewee.

Again, your goal is to make the individual as comfortable as possible so that the subject will talk freely without interruption. The investigator needs to be receptive and not take any notes initially. During the interview phase, listen intently to show that you are interested in what the subject has to say.

I violated one of these rules a couple weeks ago. I was taking a statement on an auto theft claim from the insured. I was asking too many rapid fired questions, and the insured says, “Hey, let me answer the question.” It’s important to let them talk freely.

The investigator needs to be friendly. Do not cross your arms, which suggests that you are guarded or uninterested in what he or she has to say. The investigator needs to show the interviewee what he has to say is very important to get the pertinent information to reach a conclusion to the case.

John: Jim, at what point do you move into the interrogation?

Jim: After you let the interviewee finish telling the story and you lock them into a story, then the investigator can transition into direct questions. Direct questions are necessary to focus on the inconsistencies or to clarify the information that the subject provided.

The interrogation should be conducted like an interview, as the subject should be allowed to speak freely. Direct questions, we use to clarify inconsistent statements. However, during the interrogation, the interviewer is more aggressive and intense. That’s the difference between an interview and an interrogation.

Interview is more friendly. It’s more conversational, whereas an interrogation is more intense and aggressive. The investigator may ask the same question several different ways to see if the subject provides different answers.

Again, the investigator is more adversarial and he or she may bluff the subject to elicit a confession. In a previous podcast, I mentioned the case in Massachusetts, where I obtained a confession from our insured at a district court.

The insured was involved in a staged collision with a major fraud ringleader, and the insured was at the district court for a hearing regarding a stolen vehicle. I went to the district court and I was able to secure a conference room in the probation department.

During the interrogation, I placed several mugshots on the table. One of them was the fraud ringleader. As he’s looking at the mugshot you can see he’s getting nervous. I was reading his body language there. I told the insured that the police had the ringleader in custody, which they did, and he’s starting to sing, which means talk.

He is basically saying that the interviewee set up the accident. I told him I’m not trying to jam him up, that I know that the ringleader is lying, and it’ll be in his best interest to tell me exactly what happened in this staged accident. He eventually became nervous and he confessed.

Some investigators may use other techniques as getting physically close to the subject or making them uncomfortable during an interrogation. I even heard of some situations where you do an interrogation, where they turn up the heat if it’s a warm day.

It’s important to do the interrogation in a quiet area, like a conference room or an office as compared to a donut shop in an interview. Some investigators may change the tone of their voice when asking hard hitting questions.

John: Jim, what’s the best method to record a confession?

Jim: The best method, John, is obviously to use a digital recorder. As a supplement, I always wear a body camera, because it protects the investigator, where he can prove the confession is made voluntarily and of their own free will.

Of course, the investigator needs to know the state laws regarding obtaining a video as to whether the state is a one party consent, where only one party, who is the investigator, needs to consent. Or, if it’s a two party consent, where both parties need to consent to the recording.

Of course, when we use a digital recorder in a statement, we always ask permission to record the interview. I like the fact that video shows the body movements or facial expressions that can be an indication of deception. Videotape statements are more difficult to challenge as compared to signed or audio recorded statements.

The main reason why I wear a body camera always is to protect myself against allegations of coercion to provide a confession. Also, there are times when it’s necessary to pause the audio recording. If somebody needs to use the bathroom or some unexpected event occurs, but the video continues to run. If the claimant, insured, or witness makes a false allegation while the recorder is off, we have the video as protection against such allegations.

John: Jim, one final question today. How do you know when the interviewee is not being truthful or they’re being deceptive?

Jim: Again, you have to read the body language. I just did a statement on an auto theft in the Atlanta area. When I started asking the tough questions, the insured, when he would answer, he wouldn’t look at me. He would look away. He was squirming in his seat when I asked certain questions. These are signs of deception.

There’s other behaviors like nervous laughter when you ask a question that isn’t funny, and then all of a sudden, they start laughing. There’s nervous tics. Again, as I mentioned about when I’m doing a statement, I don’t cross my arms, which shows that you’re being closed off.

That’s also an indicator of deception when the interviewee does that. Is the subject’s behavior appropriate for the situation? You know when you hit a nerve, so to speak, when an interviewee gets defensive. A lot of people ask when I take statements, “Why do you need that information?” Especially, when I’m asking a pertinent question.

I usually ask financial questions to see if the interviewee is experiencing any financial problems, which would be a motive to stage an insurance claim. Usually, when they get defensive, that means they’re hiding something. They also tend to turn questions into questions.

Again, getting back to that auto theft case in Atlanta, when I got the claim, the police got a hit on the Flock. I don’t know if you would know what that means. It’s F L O C K. It’s a camera system that law enforcement has access to, and it’s a license plate reader.

When a vehicle goes by, the Flock camera takes a picture of the license plate, and then it searches the plate to see if it’s stolen or if it’s wanted for a kidnapping, murder, all hosts of crimes. In this particular case, two Flock cameras got a hit on the stolen vehicle’s license plate after the theft. It was only a couple of hours later.

The Flock system also showed that this insured travels the same route every day, and this is significant, because this route is 25 minutes away from the insured’s house. When I asked him how to get to a specific address, the insured turned that question into a question and asked me, “What is the shortest distance between two points?”

He was basically dodging the question. Another tell-tale sign is rapid eye movement, fidgeting in the chair. If it’s a female or male, playing with their hair. Those are all signs of deception. You also look for speech patterns. One telltale sign that someone may not be telling the whole truth is irregular speech. That is why when I do the non-confrontational interview, I determine the person’s normal speech patterns, and how he speaks, and how he answers simple questions, like, “What vehicle do you drive daily? What is your name, your date of birth?”

When interviewee’s mannerisms in speech, tone, or patterns change when interrogated, they usually suggest deception. Other signs of deception would be when the interviewee provides a very basic description of the accident. “We got rear ended at the stop sign, and that’s about it.”

Again, as I mentioned previously, they rehearse the most basic details of the incident. On the flip side, you may get a claimant or an insured who may be trying to be convincing, or maybe they’re trying to convince their self about the story and provide too many details about an accident that normally would not be provided by an insured or claimant when you’re doing an interview.

I had one insured tell me that he left 37 feet of skid mark prior to rear ending the claimant. It’s like, “What, did you get out of your vehicle and go measure the skid marks?” Sometimes, they provide too much information.

John, finally, the takeaway in this podcast when you’re doing interviews is to first establish a rapport. That’s the most important thing, to get the interviewee to trust you. Then, as I said, let them talk freely without interruption during the interview to get as much information as possible. Then, if appropriate, transition into an interrogation if you suspect fraud, and focus on the inconsistencies.

John: Jim, thank you very much for joining us again this morning.

Jim: John, thank you for having me.

John: You’ve just listened to Jim Barbieri from independent adjusting and investigation company, Claims Advantage, Inc., in Georgia. Special thanks to today’s producer, Frank Vowinkel. Thank you all for joining us for “Best’s Insurance Law Podcast.”

To subscribe to this audio program, go to our web page, www.ambest.com/claimsresource. If you have any suggestions for a future topic regarding an insurance law case or issue, please email us at [email protected].

​James Barbieri from independent adjusting and investigation company Claims Advantage discusses the importance of conducting a thorough background check prior to obtaining a recorded statement.
Special thanks to our sponsor, AM Best Company, Best’s Insurance Professional Resources, including Qualified Member attorneys, adjusters and expert service providers.

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Wednesday, February 9, 2022, at 2:00 p.m. ET
 
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Legal and claims experts will review best practices for handling commercial general liability claims investigations, including the vital—but sometimes insufficient—onsite investigation work conducted by experienced and knowledgeable claims professionals. This complimentary AM Best Webinar is cohosted by Best's Insurance Professional Resources and is sponsored by Three Griffins, Inc.

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Catching and detecting fraud has really transformed over the past three decades, especially now during the COVID-19 pandemic. In this week’s Fraud Leadership video, Andrew Vogeny sits down with James Barbieri, CIFI CEO of Claims Advantage, Inc. to discuss virtual interactions and the advantages and challenges that they may face when trying to detect fraudulent people. 

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