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Last Post 02/02/2013 10:32 AM by  ChuckDeaton
Adjusters copyrighting work
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stormy56
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01/21/2013 9:35 AM

    Situation: Some adjusters believe that copyrighting their work will ensure payment from the vendor (adjusting firm).

    Problem: Copyrighting your work discloses confidential claim information to the public.  Yes, the author/adjuster can claim copyright protection if they are the one who physically creates the work. But in the copyright process, you are disclosing information that the Insured and Carrier likely does not want publically disclosed: private photographs of their house; comments on photographs; I-log comments, recommendations or conclusions. This violates your duties to the Carrier and IA firm.

    While you may be able to copyright these documents as the author, an IA firm or Carrier will likely terminate your IA contract when they discover that you are doing this.

    IA firm/Carrier solution: While under the "work made for hire" doctrine, the parties can agree that the these materials were created within the scope of the IA employee's employment, this document must be in writing. Does any IA firm include this in their boilerplate, 8 pt type, adhesion employment contract (take it or leave it contract offered to each independent adjuster)?

    Potential pitfall: There is one potential pitfall never discussed in the Carrier/IA firm/IA relationship. That is, often field adjusters either train assistants or hire assistants. If this assistant is mistreated by the adjuster, i.e. not paid, harassed, etc., and the field adjuster does not have a written "work made for hire" agreement, then this "assistant" or "trainee" is actually the one in control. This assistant or trainee has no relationship with the carrier. This assistant or trainee has no concerns about confidentiality or potential future work if they are mistreated or not paid by their trainer.

    This "trainee" adjuster owns all the work that they have created as the author of the work. This "trainee" can copyright the work without your knowledge. Can you imagine the problems that you would face if you mistreat your "assistant" or "trainee", and that assistant contacts your IA firm or Carrier, and demands the immediate cessation of use of the materials? The wise, and cautious, Carrier will immediately reassign that claim with another IA firm, to ensure that no portions of any claimed "copyrighted material" will be used.

    BTW: a copyright notice is not required to be placed upon the distributed copies for it to be copyrighted.

    My conclusion: Treat your assistants/trainees fairly, and have a written contract with them that states that you, the adjuster, own all materials created by that trainee or assistant. Also, make sure that you fully pay that trainee, otherwise the trainee can likely claim that the written agreement giving ownership of the materials to the adjuster was not valid because of the failure to pay for them.

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    Medulus
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    01/21/2013 9:59 AM
    This appears to be a well reasoned and knowledgeable discussion of some of the issues. Perhaps you can share some of your credentials, stormy. Are you an attorney, or is this simply a well researched statement of some of the issues/problems surrounding copyright? Also, I wonder about the role of the use of programs like Xactanalysis in this discussion. In a typical Xactanalysis scenario, the claim is being assigned through Xactanalysis, photos are then mounted and labelled in Xactanalysis, estimates and diagrams are written in the program, and typically they are sent back through Xactanalysis. However, the claims can also be "grabbed" and reassigned by the originator of the assignment, leaving the person to whom it was assigned unable to further modify the work. This can be done at any stage of the file handling. Does this imply a "work-for-hire" relationship between the originator of the file and the adjuster to whom it is assigned? I don't know the answer. What are your thoughts?
    Steve Ebner CPCU AIC AMIM

    "With great power comes great responsibility." (Stanley Martin Lieber, Amazing Fantasy # 15 August 1962)
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    stormy56
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    01/21/2013 12:08 PM
    I am an attorney and an adjuster. There are scores of adjuster/attorneys. Interestingly, most adjusters are surprised that I like adjusting better than law. No attorneys are surprised.

    As to the Xactanalysis scenario, it appears similar to a "collective work." A "collective work" is something like an anthology or an encyclopedia, that is a collective work. In a collective work, the authors of the singular works that make up the compilation, absent any express transfer of rights, maintain all rights to their individual work. Thus, even if you only do part of the estimate in Xactanalysis, say for example you only do the photographs, you maintain the copyright to those photographs.

    Interestingly, in a situation you may see in a home-based business, a person buys old magazine collections and cuts out pictures for framing and sale on ebay. You can buy a framed ad for "Burma Shave" or "Coca-Cola" from the 30's on Ebay. Here, the original magazine purchaser, who transferred his interests in the magazine to the current home-based business owner, owns the right to the collective work, not any of the individual separate works. So, you cannot purchase an old magazine, or a collection of photographs in a book, and sell those individually. That home-based business homeowner wanted $50,000 for his collection of old magazines based upon the value of the individual articles and ads. I'm sure you imagine the number of justifications for a partial denial that I used on that portion of the claim!

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    PSR
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    01/26/2013 5:00 PM
    Let me ask. Why would I want to do this?

    If I write an estimate on a specific home for a specific carrier, why would I feel the need to copywrite the estimate?

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    stormy56
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    01/28/2013 10:56 AM

    Some adjusters have previously discussed on this board that the best method of ensuring payment by the carrier is to copyright the adjuster's work. This was just written to clarify a recent personal inquiry directly to me on this issue, and I published it here for general interest.

    BTW: you don't actually need to pursue the formal copyright process to have a copyright in any work you create. To bring suit, and to collect certain damages, you must apply for a copyright prior to initiating suit.

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    Tim Wieneke
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    01/28/2013 9:07 PM
    PSR,
    That's a fair question. I think there may be an issue of whether or not you can even copyright the interior layout and interior photos of someone's home. I've done claims for banks and I know for sure I couldn't distribute said photos to anyone but very specific people.

    Stormy,
    Correct me if I'm wrong but I thought the Berne Convention determined that the author of a document didn't have to make a notice of copyright anymore after 1989 and that copyright is automatic to the author. I agree with you though, it is odd that someone thought of copyright in terms of perceiving that they were protecting their adjusting reports. I always thought of IA firms not paying their adjusters as a theft of professional services issue. As an attorney, how would you pursue a firm for nonpayment?

    Tim
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    ChuckDeaton
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    01/29/2013 9:47 PM
    There is no question in my mind that I own the rights to anything I produce, whether claims related or not, the problem is that once my work product is uploaded the vendor will share that work product with anyone they choose irrespective of whether I am paid.
    "Prattling on and on about being an ass with experience doesn't make someone experienced. It just makes you an ass." Rod Buvens, Pilot grunt
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    stormy56
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    01/31/2013 9:39 PM
    A copyright notice is not required to be placed on publicly distributed copies of the work. Registration of the copyright is permissive and may be done anytime during the life of the copyright. Registration is a prequisite to a civil suit.

    How would I pursue nonpayment? There are so many considerations that it is a determination that must be made by each adjuster. Do they think a lawsuit for payment would preclude other vendors from hiring you (I think adjusters that were class representatives in the BP suit did not have difficulty finding employment)? Where would you have to sue? Can you get an attorney on a contingency fee basis (if you have a good case, the attorney will want a contingency fee; if the case is not as strong, they will want an hourly rate)? Is the IA firm going to be in business (if a firm gets a reputation for not paying, it could lose adjusters and then go out of business) so that I can collect? I've heard stories about one IA firm that allegedly doesn't pay adjusters, then forms a new company each year -- an adjuster friend found out that a new IA firm was run by him by checking the corporate registration with the Secretary of State and he found the name of that same man that formed a new company each year.

    One firm's motto is "Know before you go." This is probably what an adjuster should think about before accepting an assignment. Does the IA firm have a reputation of not paying? Does the IA firm give you the file requirements and fee schedule before you go? I'd rather work a 60% cut of a company that pays for pool enclosures in a hurricane, as opposed to a 70% cut of Liberty Mutual (last I heard, they didn't pay, or the adjuster couldn't bill, for pool screen enclosures). It seems like if you "know before you go" you'll be less likely to run into non-payment issues.

    Finally, if you're tight on operating capital, stick with the big IA firms. I've never heard of Eberls, Mason, Renfro, Worley, and Crawford not paying for a quality product. CADO is filled with the names of firms that adjusters have had problems with -- it seems like there are always two sides to those stories, e.g. "I didn't get paid," "you didn't get paid because of an inferior product." Every IA firm that doesn't pay also throws out the "buzz word" to discredit the adjuster: "he's disgruntled."
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    PSR
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    02/01/2013 7:53 PM
    You're doing work for hire. If I'm working claims for State Farm, then that is State Farm's estimate.

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    CatAdjusterX
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    02/02/2013 1:11 AM
    Posted By stormy56 on 31 Jan 2013 09:39 PM
    A copyright notice is not required to be placed on publicly distributed copies of the work. Registration of the copyright is permissive and may be done anytime during the life of the copyright. Registration is a prequisite to a civil suit.

    How would I pursue nonpayment? There are so many considerations that it is a determination that must be made by each adjuster. Do they think a lawsuit for payment would preclude other vendors from hiring you (I think adjusters that were class representatives in the BP suit did not have difficulty finding employment)? Where would you have to sue? Can you get an attorney on a contingency fee basis (if you have a good case, the attorney will want a contingency fee; if the case is not as strong, they will want an hourly rate)? Is the IA firm going to be in business (if a firm gets a reputation for not paying, it could lose adjusters and then go out of business) so that I can collect? I've heard stories about one IA firm that allegedly doesn't pay adjusters, then forms a new company each year -- an adjuster friend found out that a new IA firm was run by him by checking the corporate registration with the Secretary of State and he found the name of that same man that formed a new company each year.

    One firm's motto is "Know before you go." This is probably what an adjuster should think about before accepting an assignment. Does the IA firm have a reputation of not paying? Does the IA firm give you the file requirements and fee schedule before you go? I'd rather work a 60% cut of a company that pays for pool enclosures in a hurricane, as opposed to a 70% cut of Liberty Mutual (last I heard, they didn't pay, or the adjuster couldn't bill, for pool screen enclosures). It seems like if you "know before you go" you'll be less likely to run into non-payment issues.

    Finally, if you're tight on operating capital, stick with the big IA firms. I've never heard of Eberls, Mason, Renfro, Worley, and Crawford not paying for a quality product. CADO is filled with the names of firms that adjusters have had problems with -- it seems like there are always two sides to those stories, e.g. "I didn't get paid," "you didn't get paid because of an inferior product." Every IA firm that doesn't pay also throws out the "buzz word" to discredit the adjuster: "he's disgruntled."

    ...................................................................................

    Stormy56,

    you wrote:

    (I think adjusters that were class representatives in the BP suit did not have difficulty finding employment)? 

    I have wrote on this very topic a dozen times. Many of my members got their first taste of the claims industry being deployed by Worley CAT (granted they were not doing insurance claims) These folks were almost exclusively newly licensed claims adjusters with NO experience. These folks were making close to 13,500.00 per month with little to no overhead.

    The day rate was somewhere around 350.00, plus 100.00 per diem and up to 100.00 per day for lodging reimbursement. These folks knew what they were getting into. It was clearly spelled out and they agreed to that and signed accordingly. Some folks then decided to go after additional monies for overtime. They knew the schedule was 12 hours a day 7 days a week from the onset and agreed agreed to that. Those who participated in that lawsuit felt like they were worth 800.00 + per day which is ridiculous. Even guys/gals with 20 + years of experience working cleanup have a day rate less than 800.00.

    I have written that those who agreed upfront to terms and then sue for more are folks with little to no moral character. I would NEVER hire anyone who participated in that lawsuit. (Make no mistake, I am a 2nd or 3rd tier vendor and as such haven't put a lot of folks to work) Nevertheless, these people are less than scrupulous (in my opinion)  

    "A good leader leads..... ..... but a great leader is followed !!" CatAdjusterX@gmail.com
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    ChuckDeaton
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    02/02/2013 10:32 AM
    Robby, cognitive dissonance on this scale is usually reserved for those that push shopping carts thru city parks at midnight.

    Just so you know, an illegal contract is not an enforceable contract.

    The agreement the Worley contractors signed was adhesive and aleatory in nature and it broke wage and hour law. When push came to shove Worley knew they had broken the law and settled out.

    I can tell you that my friends who were involved in standing up to a law breaking vendor are working Hurricane Sandy claims.















    "Prattling on and on about being an ass with experience doesn't make someone experienced. It just makes you an ass." Rod Buvens, Pilot grunt
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