As anyone who has done any insurance claim work, particularly health or disability, can tell you, surveillance is an important part of the insurance industry arsenal in combating fraudulent claims. In practice, surveillance rarely yields a “smoking gun” that would legitimately justify a change in claim status, but it is not unheard of. Regardless, insurers love surveillance, and are known to embrace the fruits of same, whether it is probative or not. As plaintiffs’ lawyers, we may not like the process, but most of us recognize the right of carriers to reasonably check on the activities of their insureds, to help minimize fraudulent claims.
That said, a new development in the area of disability claims “management” has rung alarm bells throughout the legal community and warrants action by our state legislature. Traditionally, surveillance is conducted by private investigators hired by the insurance industry to monitor the activities of the insureds by, inter alia, sitting outside their homes or offices, or following them on foot or in cars, charting their physical activities to see if they are consistent with the restrictions and limitations reported by the insured. Videotapes are frequently utilized while tracking individuals under surveillance, and on some occasions, such videotapes can be highly probative. Further, despite what plaintiffs’ lawyers may argue, there is no question in the minds of the courts that such surveillance is legally appropriate.
