The $114 Million Case Against USAA

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Bert Martinez:
If you’ve ever dealt with an insurance company and you felt like they were mistreating you, well, today on the show we have 2 experts to walk us through that. We’re going to be talking specifically about a case called Kuhn versus USAA. It’s an incredible story. I’m being joined by Kimball Jones and Josh Barrett. Welcome, guys. Thanks. Thanks for having us, Barrett. We were talking, talking off set here, and something that you brought up, which I want to go back to, and that is There is a difference out there in the marketplace where you have law firms that are great at marketing.

Bert Martinez:
Nothing wrong with that. Uh, you know, you see them on the billboards, you see them on TV, you see them on the back of cabs. But one of the things that you said that caught my attention was that a lot of these mass advertisers don’t have legitimate litigation prowess. Talk about that.

Kimball Jones:
Yeah, it’s, it’s a different skill set, right? So marketing, you can do it in any field. You If you’re an engineering firm, you can market, you can market for whatever you do. And so there are lawyers that are great at marketing, but if you looked at the actual market of lawyers and law firms, you’d tend to find, I think, that maybe for every 20 that is really exceptional at marketing, there might be one that’s really exceptional at trial. And oftentimes, in fact, I would say most of the time, those that are really good at trial actually are not really in the marketing business so much. The cases kind of go to them.

Bert Martinez:
Gotcha. Gotcha. People find them.

Kimball Jones:
Yeah. Yeah. And oftentimes it’s from the marketing guys, right? Somebody that markets, they realize they have a case that is a very significant case. Complex. Complex. And so they reach out to one of the firms that knows how to actually take a case to trial.

Bert Martinez:
Okay. Yeah, that makes sense. And this is something, again, I asked you guys off this before we started, but I’m going to ask again. And that is, you guys have been in practice for over 13 years. Are you still shocked at the way insurance companies behave?

Kimball Jones:
Yeah, it’s, it’s super shocking. Josh? Yeah.

Josh Barrett:
They, I mean, the thing that’s really shocking to me is they don’t seem to be getting better. They seem to be getting worse. And I mean, even after this massive verdict, we have a lot of cases that are similar conduct and they double down on it and they do the same thing over and over again.

Bert Martinez:
That’s incredible, isn’t it? That just blows my mind. Go ahead.

Kimball Jones:
Yeah, it really is. There’s a, there’s a, yeah, there’s a dynamic in the world of insurance where they, when we saw them making major mistakes in this case and some other cases, ’cause we had some other very large verdicts involving insurance, we expected they would get better, but they can’t. And I, to me, the analogy is they’re like a cruise ship compared to like a little speedboat and they just have no ability to change the bad things they do. They’re just like entrenched in their system. And so the way that they’re going, the direction they’re going is literally to continue firing their most experienced and most expensive people that actually know what they’re doing, hiring people that are very cheap that they will call adjusters, but they actually don’t know how to handle or evaluate cases and use AI and algorithms to basically replace people. That is the direction they are all going from what we can tell. And it’s more and more mistakes, more and more taking advantage of insureds, but intentionally. They have created a structure to maximize taking advantage of people, charging as much as possible, and not paying when it’s owed.

Kimball Jones:
That’s the structure.

Bert Martinez:
Well, and I think one of the things that frustrates us as consumers here, first of all, you have to have insurance, which is great. And then if you use your insurance, they typically will raise your premiums. So it’s like buying a car and then being charged extra because you’re actually wanting to drive the car. Is that kind of my analogy? Right? Because it’s the craziest thing.

Kimball Jones:
Yeah. And, and they all are so in tune with each other that you’ll find that their rates are actually all very similar. So when they talk about pricing and arguing about pricing, it’s kind of more of a facade than anything. The rates—

Bert Martinez:
Back to market.

Kimball Jones:
Exactly. Exactly. It’s more of a marketing gimmick. The, the reality of the rates is they pretty much all are at the maximum rates that that the state will allow, and then they buddy up to insurance commissioners and get rates hired. And then you can go look through an analysis of how many insurance commission people end up afterwards going into business working at one of these insurance companies after the fact. And so it’s a dynamic where their pricing isn’t so much market-driven in many respects anymore.

Bert Martinez:
Gotcha, gotcha. It’s whatever they can justify or get away with or whatever.

Kimball Jones:
Yeah, because when you look at economics, big picture economics, when you’re dealing with a truly competitive market, profits go to zero over time, right? Because other people go in because, because entry is, is easy to get in and then, and then markets go down to zero,

Bert Martinez:
right?

Kimball Jones:
Insurance, all it is is money. We’re not building big factories to create new airplanes, right? Right. There’s, there’s no barriers to entry, right? It’s just a matter of setting up a shop and, and starting to offer insurance. There’s no barrier to entry. So it should have caused prices or, or profits to go to zero, but there are record profits every year. It’s because we’re dealing with a manipulated market involving insurance companies with insurance commissioners and prices that are higher. So from our perspective, we always get beat up on that. Oh, insurance is going up because of like attorneys or something.

Bert Martinez:
Right, right.

Kimball Jones:
It’s the most nonsense thing in the world. They’re, they’re having record profits year after year, cheating people over and over again. And so It has very little to do with their pricing.

Bert Martinez:
Right. Absolutely. Well—

Josh Barrett:
I was just going to say, one of the things that we see is kind of that mentality of, if you use your insurance, you’re going to be penalized for it. And so in Nevada, they cannot raise your rates for using insurance when it was not your fault. So you buy extra insurance in case the person that hits you doesn’t have enough. Now you can use yours. They can’t raise your rates for that. And so what they’re doing is they’re minimizing your damages and offering you less and trying to pay you out less to make up that difference there. But it’s created an environment where people afraid to use even their own insurance when there isn’t supposed to be a penalty to them.

Bert Martinez:
Right. I think, I think that fear is in the back of every insured’s mind.

Kimball Jones:
Absolutely.

Bert Martinez:
They know that, uh, especially if the damage is small enough, hey, I’ll just pay you cash. Let’s not get the insurance involved because that fear is so real. Right. All right. I want to back up a little bit. You guys work or, uh, and you’re a partner, I believe, at the Bighorn Law Firm.

Kimball Jones:
Yes, we both are. Yes.

Bert Martinez:
Okay. Both are. Okay. Why Bighorn? Where did that name come from?

Kimball Jones:
You know, bighorn sheep is the state animal.

Bert Martinez:
Okay.

Kimball Jones:
So, so our, our central hub is, is right here in Las Vegas, Nevada. We do practice in many other states because of some of the success we’ve had in trial. We now are a little bit more of a national brand where, where now people from around the country— I’m handling cases in, for example, West Virginia, Washington, right? So, so we handle cases all over the place, but It is— it’s because it’s the state animal and this is where we started.

Bert Martinez:
Gotcha. Okay. All right. Just wanted to make sure.

Kimball Jones:
Yeah, yeah, absolutely. No, we felt it representative, you know, and we liked it. And we started out with our symbol with these 2 rams butting heads. Right. And so, you know, we’ve kind of varied from that a little bit, but it’s— yeah, so it’s the state animal.

Bert Martinez:
Well, and I like it. I like it. I mean, again, you know, because you are, you are butting heads. Yeah. I mean, yeah, if insurance companies behave themselves, what would you know? You’d have to find other, other work, right? But luckily they, they continue to surprise and shock with their—

Kimball Jones:
Yeah. I mean, our, our, I guess, motto for, for a better term, but our motto as a firm is that we, that we create real risk for the powerful to obtain justice for real people.

Bert Martinez:
Oh, I like that.

Kimball Jones:
And so that’s what we do. And so in the case of, talk about Tim Kuhn versus USAA, our intention was never to go to trial and get a big verdict. We wanted USAA to do the right thing. We wanted them to pay the policy that was owed for a situation with very severe injuries, and they just would not. And it wasn’t that they wouldn’t for like a couple of months. No, no. They like forced us through like 4 years of litigation and wouldn’t. And then a month before trial, they pay the policy.

Kimball Jones:
And what they thought is that we were going to drop the case then because that’s just what everybody does. Everybody says, oh, you can drag us through all of these years where you invest our money that you owed us 4 or 5 years ago.

Josh Barrett:
Right.

Kimball Jones:
And, and we lose all this money to inflation. you know, now it’s worth a fraction of what it was at the beginning that all this happened. And, and we just walk away because that’s what people do.

Josh Barrett:
And there’s been lots of costs and expenses and fees along the way because we’ve had a fight for those years. And so now that money doesn’t even do what it should have done years before.

Bert Martinez:
Right. And, and to your point also, I think there’s an emotional cost because this is dragging on. It’s dragging on. And like you said, hey, if it would’ve been resolved in, you know, 30, 60, 90 days, okay. That’s just business. You know, you gotta go through the layers, but 4 or 5 years later, and now you have, you know, whatever, $20,000, $30,000, $100,000, $200,000 of your own money invested in it. Even if they paid the policy limits, to your point, it’s, it’s, it’s almost worthless. It’s 5 years later.

Kimball Jones:
Yeah. He would’ve gotten virtually nothing if we had just walked away at that, at that point. And so, yeah, it was a very meaningful, like, no, no, no, you’re not getting away for with this. And it was interesting during trial, they tried to make a point of that to suggest that Tim or his attorneys were being unreasonable. And they told the jury in opening, 99.9% of the time USA resolves these cases and they never go to trial, and suggesting that. And so we just flipped that on its head and I put their corporate representative on the stand and I said, you heard USA’s attorney in opening. He said 99.9% of the time, People just walk away. And he’s like, yeah, you get away with this behavior 99.9% of the time.

Kimball Jones:
And he’s, you know, and, you know, there’s nothing to really say. But that’s, that’s the true story of it, right?

Bert Martinez:
I mean, look, most people have heard that trial is usually circumvented because they settled, you know, like right on the courtroom steps or right, you know, a week before trial or 2 weeks before trial. And that’s how they, you know, and they again get away with that kind of behavior because depending on your situation, you know, after, after being dragged through it for years, you’re exhausted mentally, emotionally, sometimes, you know, financially as well. All right. So the verdict was $114 million and, and this was still a massive verdict. And you guys are going through the appeal process. They appealed. USAA appealed. All right.

Bert Martinez:
So walk us through this. Timothy Kuhn, if I remember correctly, is stopped at a stoplight.

Kimball Jones:
He’s on the interstate.

Bert Martinez:
Okay.

Josh Barrett:
So he’s on the freeway headed towards the airport. Traffic in front of him slows down and stops. He slows down and stops and gets rear-ended by a car behind him, a pickup truck, actually, and then pushes it into the car in front of him. So he gets crumpled from both ends and then So we made a claim against the at-fault driver, the one who rear-ended him, who ironically was also insured by USAA. And we ended up suing him in this lawsuit. And then Tim’s own insurance came into that lawsuit to stand in the shoes of that driver and basically say that Tim wasn’t hurt and he wasn’t as hurt— he wasn’t hurt as bad as he said he was.

Bert Martinez:
And talk about Tim’s injuries. What actually did he suffer?

Josh Barrett:
So his main injury was a traumatic brain injury. That was his most serious injury, and it kind of evolved, and he developed cognitive deficits where he couldn’t function the way that he functioned before. He couldn’t be the person that he was before. And so that was the main focus of the case and the injuries, and really the trial kind of revolved around that.

Kimball Jones:
Yeah, significant memory issues, just all sorts of issues being able to think, function, executive functioning. This is a pretty high-level guy. He had a PhD, very smart guy. So—

Bert Martinez:
And how old is he at this point?

Kimball Jones:
40s.

Bert Martinez:
Okay. Relatively younger.

Josh Barrett:
Early 50s, maybe. Early 50s. I don’t remember off the top of my

Kimball Jones:
head, but— I’m 45. He feels like he’s about my age, maybe a little bit older. But Tim is, but yeah, high-functioning guy, PhD, very smart guy before all of this.

Josh Barrett:
Right, right, right.

Kimball Jones:
And so even after this, he’s not like, he’s still smart. And so it’s really tricky because he has this major cognitive drop-off. Major loss of emotional response, ability to control or deal with executive planning and interpersonal issues and things like that. Just those parts of his brain had been damaged and it was impacting him. And anyway, but it’s an interesting thing when you deal with somebody who has a traumatic brain injury that’s pretty significant, they look the same,

Bert Martinez:
Sure.

Kimball Jones:
And, and parts, if you watch them long enough, you start seeing some real, real issues. But in a 10-minute interaction, a person might have no appreciation for kind of what it’s done to them. And so for Tim, though, fortunately, there were a lot of people in his life, both, both professional within business, also personal people who had— he had played like college soccer with and things like that. So he had all of these people from his life that were able to come and testify and talk about all these different aspects of his life and how it just completely derailed him. So,

Bert Martinez:
yeah, that’s, uh, that’s astonishing. Anybody who’s dealt with somebody who’s had a, a brain injury, again, sometimes, like you said, it’s not this, it’s not this, uh, what do you call it, overwhelming, uh, thing that you notice. It’s, it’s maybe a temper. The, the guy never used to lose his temper. Now he loses his temper all the time. Or, you know, he, he used to be able to read for hours. Now he, you know, he has no attention attention, uh, we call it, uh, be able to read for that long of a period. Okay.

Bert Martinez:
Um, so you explain this all to, uh, USAA. Uh, obviously they’re not going to take your word for it, so you got to submit the, the medical records. Here’s what’s happening. Here’s maybe a declaration or a test, a letter saying this is some of the changes. And their reaction was what?

Kimball Jones:
Yeah, yeah. And, and yeah, to be clear, this isn’t like attorneys saying, hey, our client has issues. These are doctors, neurologists, Right, who are evaluating him, doing very detailed evaluations. And we’re submitting the medical records to USAA saying, hey, so it’s pretty bad. The bills are pretty high. He needs some pretty intensive therapy for this. These are the doctors and the analysis of these highly specialized folks. And USAA, they don’t, they don’t get a medical person to look at it or anything like that.

Bert Martinez:
Oh, no,

Kimball Jones:
no, no, not at all. They have an adjuster with no medical experience. Like say, well, we’ll make an offer for like less than the medical bills. No explanation. So like literally like the best offer they made until a month before trial was where Tim would walk away without his medical bills being paid off. Literally not, no pain and suffering, no nothing. The best offer was less than the medical bills.

Josh Barrett:
Wow.

Kimball Jones:
Yes. And, and not with any sort of basis medically, just because USAA said so.

Bert Martinez:
Yeah, because we’re a big multibillion-dollar firm and we’re going to run over smaller people. They’re okay with that, what it comes down to. Okay, so—

Kimball Jones:
Now, I will say this. During litigation, after they had already made that decision, years later, they did hire 2 neurologists to try to say that it wasn’t true. And those guys, one of them in particular, kind of dragged him through the mud and said Tim was lying about stuff, all sorts of things like that. And, you know, so we have on the public record that, like, professionally he’s being accused of, of basically faking it right on top of the injuries he’s very clearly suffered. And so in trial, I mean, we just annihilated that guy, the guy that made those claims. He claimed that this was a low, tiny little collision that couldn’t have hurt somebody.

Bert Martinez:
Right.

Kimball Jones:
Had never seen the photos of the collision, didn’t know anything about the collision. He claimed that he had done this big, long examination of Tim Um, said it was at least 20 minutes, but probably longer than that to, to evaluate him. Well, we had it on video. It was, it was a minute and a half. Yeah, something like that.

Bert Martinez:
Oh no.

Kimball Jones:
Yeah.

Bert Martinez:
You’re kidding.

Kimball Jones:
Completely lied about his examination. So that’s the person that USAA hired. And by the way, USAA, before trial started, knew about these lies by this expert, and they put him on the stand anyway because they had to have some excuse for for their claims. And so they put him on the stand, and he was the last witness in the case. And we took him to task, and it was just— I mean, it was a bloodbath. I mean, the jury, the jury was looking at him. They couldn’t believe it. When I finished crossing him, he looked so bad, and you could, you could tell that the jury felt like he didn’t get punished bad enough for how despicable he was, honestly.

Bert Martinez:
Okay. I’m sitting here again. I have, you know, no trial experience. Okay. But it seems to me if I was the lawyer for USAA and I have the choice of putting on a bad witness versus no witness, you would think they would’ve gone, let’s just go with no witness. Uh, uh, ’cause I mean, essentially this guy lies about the, the evaluation, has no accident reconstruction type background. So, You know, how is he going to say this is a low-impact anything?

Kimball Jones:
Well, he didn’t even see it either. It wasn’t a low impact. It was a big impact.

Bert Martinez:
Right. I mean, you know, for you to hurt your head, okay, in a— your vehicle is stopped, you get slammed by this truck that obviously didn’t see you till the last minute, whatever. I’m assuming Tim was wearing a seatbelt, but he still got slammed hard enough to cause a brain injury. That’s not a a small impact. That’s not a low-impact car, or what do you call it, low-speed impact. That’s a high-speed impact with all that weight behind it.

Kimball Jones:
Yeah. And, and even when the police arrived, what, minutes later, Tim was like, couldn’t get out of his car initially, needed assistance to get over to the ambulance. I mean, this, this wasn’t a situation where he’s like, you know,

Bert Martinez:
faking

Josh Barrett:
it. I mean, there’s photos of him from the scene where he’s like bleeding from the bridge of his nose, his forehead area. And so he’s All the records are talking about confusion, and it’s unclear whether he lost consciousness or didn’t lose consciousness, which is a huge red flag on its own. And really, I think they brought this guy to trial because they had to have something to justify their position. They had spent so many years saying he doesn’t have a brain injury that they then have to have somebody who’s qualified to talk— not that he was qualified. So… But they’ve got to have somebody who’s got some level of credentialing to say, oh, they were right in their position.

Bert Martinez:
Right.

Kimball Jones:
It was—

Bert Martinez:
it’s Vegas. Let’s roll the dice. You know, let’s roll the dice.

Kimball Jones:
One of the crazy things I will say, though, case after case that we take to trial, you know, what you said is obviously right. You have a witness. So what? You’ve already paid him $50,000. You know he’s going to get annihilated, right? And of course you don’t bring him, right? That’s the obvious thing for you and I to say. But these insurance companies, remember I just mentioned that these guys are, they’re cruise ships. These aren’t speedboats.

Bert Martinez:
Right.

Kimball Jones:
So they can’t seem to get authority to pull their bad witnesses. It’s a bizarre thing case after case.

Bert Martinez:
That’s so funny.

Kimball Jones:
Yeah. Trial we just had a month or so ago against Caesars. I had a conversation with the defense attorneys and I’m like, guys, look, for the sake of time, you shouldn’t bring these witnesses because I’m going to crush them. And you know, I will. This is, this is the way it’s going to happen.

Bert Martinez:
Right.

Kimball Jones:
And you could tell they knew that I was right and that they didn’t want to bring them, right, without them actually overtly saying it. But ultimately, they had to bring them. The insurance company would not let them not bring them. And that’s exactly what happened. They just got annihilated in front of the jury. So with every witness, they lose more and more credibility. because they’re bringing these witnesses that are clearly liars, right? And juries don’t love that, right? But it has been my experience, case after case, they do it anyway, even when the attorneys know.

Josh Barrett:
And in Coon, though, it was even more bizarre because you’ve got this neurologist that they’re bringing as their expert who says he has no brain injury, he’s lying, he’s faking. But USA has already disregarded that and paid the policy before trial. And so they’re in this situation where it’s like, we don’t even believe this guy because we paid the money. So we don’t want to say we paid the money because we don’t believe this guy, but we’re going to put him on the stand anyway. And it just was so bad for them.

Bert Martinez:
That’s— that is just crazy. Um, all right, so at what point do you guys start thinking, hey, we’re going to have to sue these guys and go to trial? They’re dragging their feet. They’re, they’re, they’re They’re not, what do you call it, changing their mind on the injuries or the amounts. So at what point do you guys start thinking litigation?

Josh Barrett:
This one was— they actually made it really easy for us because we had a statute of limitations, the timeline that we have to sue the other driver. So we filed the lawsuit against the other driver and then we have to put the insurance company on notice. And so USA then said, well, wait a minute, we’re going to stand in the shoes of that other driver. So they came into the lawsuit, they made the decision. to fight for the at-fault person more than their own insured. And so at that point, it was easy because we said, well, if we’re going to litigate against USA, we should litigate all the claims against USA. So we amended the complaint to add all of our bad faith claims against USA.

Bert Martinez:
All right. And so for our, our audience that may not understand this, why did you sue the driver versus suing directly to the insurance company?

Kimball Jones:
You know, there’s a variety of reasons, but The driver bore the fault for the injury. So the verdict that you have in this case, right, the verdict that you have in this case is $114 million. $107 million of that is attributable to USAA and their bad faith conduct. And punitive damage is also related to that. $7 million are for the underlying injuries in the collision itself.

Bert Martinez:
Gotcha.

Kimball Jones:
Okay. And so the nature of it, it made sense for us to sue the driver And USAA, surprisingly— and what we could have done is with the driver, ultimately, if we identified that the damages exceeded the policy, USAA then is obliged to pay the money. Instead of doing that, they decided to step into his shoes and defend the case.

Bert Martinez:
Gotcha.

Kimball Jones:
And then the driver ended up not even being really part of the case. And it was really just a case against USAA is how it went. But I would say even where we file a lawsuit, 95% of the time, you know, it’s 1 out of 20 cases that might go to trial, if that. And in this case, we still thought the USA would pay and we’d probably resolve, but we did an offer during litigation giving them another opportunity to pay their policy, the $250,000, and they refused. And when they refused that offer during the course of the case, Josh and I, we met and we looked at this and we said, you know what? That’s it, man. Let’s, let’s just go get him. Let’s just prep the case for trial. And then we just went forward.

Kimball Jones:
That was it.

Josh Barrett:
And this one, I mean, it had some other— it had a lot of layers of complexity, but Tim had an additional insurance policy that didn’t get triggered until USA paid their whole policy. And so USA was standing in the way of him accessing other insurance benefits. And so it wasn’t really a situation where we were ever going to recommend that he take less than that policy because he was giving up other stuff that he had paid for.

Kimball Jones:
Yeah. And that compounds what USAA was doing to Tim, right? By them not offering their full policy, they were blocking him from other insurance, literally blocking him. If he had settled for a dollar less than their policy, he would have given up a complete other insurance policy related to his injury based on how the law works. And so USAA knew this the whole time. And so they— and they blocked him from that for like 4 years. And by the way, once USAA paid, and it triggered the other insurance company having to evaluate the case. They paid in 27 days. They paid their policy.

Kimball Jones:
Like, yeah, this is clearly worth more than $1 million, and they paid it. And so, like, USA sat there for all, you know, 4 or 5 years refusing and blocking his access to insurance coverage.

Bert Martinez:
You know, it’s amazing to me, but to your point about they’re bringing in these adjusters who have less experience, I think that there’s been this crazy, you know, everything’s AI, AI, AI, AI. And so, and I think AI definitely going to have some value, but at the same time, it’s not, it’s not to the point now anyway where it can replace common sense and say, hey, we should just pay this policy. I mean, yeah, because if USAA had just said, you guys are right, You know, we’re paying policy limits, let’s say 90 days into the, into the situation, then Tim would have been able to access his other policy and it would have been done.

Kimball Jones:
Right.

Bert Martinez:
But yet, for whatever reason, like you said, they, they’re not nimble enough to turn, to turn the boat around. They just got to keep going. And here they are, $114 million later.

Kimball Jones:
Yeah. Yeah. And by the way, the one of the other things is their systems are built. And when I say this about systems, it’s not just USA. This is, this is like industry-wide. But for example, the adjuster in this case, right, her information, like, like the way that she gets paid, she does get a salary, but she gets all sorts of bonuses that they’re framed in, you, you’re getting bonus for like treating your desk like a business owner. But what it— but what that really means is cheating the people making claims.

Bert Martinez:
Right.

Kimball Jones:
And undervaluing their claims. Right. And so to the degree that she gets people to accept, in my view, less than the harms they’ve actually suffered, she gets bonused for that. And so they have a structural mechanism to cheat their own insureds by bonusing the people that oversee that. And when you realize that that’s the way that they actually operate, that this person with no medical experience gets bonused for cheating their insured, well, what do you expect them to do? Right. Do you expect them to offer full value of what happened? No. And that’s why we have these lowball offers, in this case, less than the medical bills even.

Bert Martinez:
That’s incredible.

Kimball Jones:
Yeah.

Bert Martinez:
Well, and I think that— I know Progressive, Allstate, and State Farm have all been sued regarding undervaluing property damage, something as simple as property damage.

Kimball Jones:
Yeah.

Bert Martinez:
They have this whole scheme. So where if the car is worth $20,000, they’re going to try to get it paid for, let’s say, $15,000. And they have— again, they use these different AIs and they use different reporting agencies that, that try to appear independent, but yet they work for the insurance industry only.

Kimball Jones:
Right.

Bert Martinez:
You know, and so—

Kimball Jones:
Well, yeah. And in this case, we had, we had to deal with AIS, Auto Injury Solutions.

Bert Martinez:
Okay.

Kimball Jones:
Which is who reduced the value of Tim’s bills arbitrarily. And we happen to know from other cases and other information that the way that they do this is they do it with a percentage of different things. Let’s say, for example, Medicare rates.

Bert Martinez:
Right.

Kimball Jones:
And so they basically say, well, yeah, Tim doesn’t have Medicare. He doesn’t have access to that. Medicare gets to dictate its terms and its rates.

Bert Martinez:
Right.

Kimball Jones:
And not everybody accepts Medicare, by the way, either.

Bert Martinez:

Right.

Kimball Jones:
They say, no, we’ll never pay more than some percentage of Medicare rates, right? As an example, right?

Bert Martinez:
Right.

Kimball Jones:
But USAA gets to tell Auto Injury Solutions what— how much they’re valuing different things at. And they try to hide behind, oh, this independent group did it. Nonsense. This group only works, like you said, for insurance companies. Their whole job is to falsely claim, basically, as far as we can tell, that bills Should not be valued at what they’re, what they’re claiming, what the actual charges are. Right,

Bert Martinez:
right, right.

Kimball Jones:
So yeah, it’s a, it’s a bizarre world where there doesn’t even seem to be an effort to try to fairly value the, the claim made by their own insured. Right,

Bert Martinez:
right. Well, and think about it again, if they’re successful 80, 90% of the time, you know, it doesn’t make financial sense for them to change. We’re going to rip off 90% of our people 90% of the time. And again, they factor in, okay, for all the, you know, bighorn law firms out there that kick our butts in court, by the time we get there 5, 6 years later and we go through the appeal process, we’re still coming out ahead.

Kimball Jones:
I mean, I can tell you, we hit another insurance company who did really bad things. I won’t even say the name for a big amount. Right. And after that trial, we ended up settling the case. And I had a major executive from that insurance company who actually came to my office, wanted to meet with me, wanted to talk with me. And she, when we were talking, it was clear to me that despite the fact I had just nailed them for one of the largest verdicts they’d ever been hit with, she just viewed me as a nice kid. And like, I was not even a bother.

Bert Martinez:
So naive, right?

Kimball Jones:
Yeah, it was, it was. We’re, we’re so small time,

Bert Martinez:
right?

Kimball Jones:
And, and in USAA’s perspective, right, USAA, the year they were cheating Tim, they, they had $43 billion in revenue. And an example that I gave to the jury was, look, when you’re talking about, about the kind of message that needs to be sent, right, to a company when they have these kinds of means, A million seconds of your life is 11 days. A billion seconds of your life, I believe, is 34 years, 32 or 34 years of your life. Just the million and a billion. The difference between a million and a billion is basically a billion, right?

Bert Martinez:
Right. It’s forever.

Kimball Jones:
It’s almost nothing. And so when you consider that, when you read their annual reports from USA or these big insurance companies, by the way, USA is not the biggest, right? It’s like the third biggest. But if you read their annual reports, you have to multiply them all by a million to even know what they’re talking about, right? Because the numbers are too big. And so, and so the, uh, when the— I will tell you, like, our verdict against USA, no impact on business.

Bert Martinez:
None.

Kimball Jones:
When they’re, when they’re running their numbers, it just makes no difference whatsoever. And so unless we start hitting them with hundreds and hundreds of these kinds of verdicts, It’s not going to actually change their behavior, unfortunately. And so there is a need for really big verdicts like this and for the verdicts to stick because they only think in terms of numbers. And right now, cheating their insureds is definitely the better way to go.

Bert Martinez:
Right,

Kimball Jones:
right.

Bert Martinez:
I, I agree with that. I— if anybody looks at, at the industry, and a lot of people don’t know this, but I think— is it Allstate? And if, if I’m If I’m wrong, you can correct me, but I think Allstate owns several repair shops.

Kimball Jones:
Yeah.

Bert Martinez:
So, so your car’s in an accident, you’re going to take it to an Allstate-owned repair shop, which seems to me, you know, a little double dipping there. Right. And you know that they’re going to get— they’re going to put on whatever parts Allstate says, hey, put on non-OEM parts or whatever. Some of these insurance companies own medical facilities now. And I think that all of the health insurance companies own medical facilities and they own all these other facilities where it’s going to be pretty scary because the person treating you may not have your best interests at heart. They may be thinking, I work for the big insurance company, I got to make them happy.

Kimball Jones:
Yeah. I mean, I can tell you, we have a lawsuit right now to give you— so this isn’t one of the casualty insurance companies, but everybody has heard of UnitedHealth Group who owns UnitedHealthcare. The CEO was shot, right? And, but on their other arm, they own Optum, right? UnitedHealthcare owns all sorts of insurance companies in the state of Nevada and across the country, right? And they also own a whole bunch of medical facilities across the country. And so we have a case that we settled with them a year or so ago where we had a young patient, 13-year-old boy, discharged basically without getting any reasonable care or evaluation, discharged home as though he had no problems, but he had meningitis and died.

Bert Martinez:
Hmm.

Kimball Jones:
And a careful examination, we believed, clearly would’ve saved this boy. And instead he died as a result. And their entire structure was bonusing people at this facility for something called door-to-door time, which meant the shorter the time that a person comes in to the time that they leave, There’s a bonusing component that everybody knows. And it’s not that the numbers were catastrophically big in terms of the percentage of income, but it’s that the whole group knows as a culture that if we’re hitting our door-to-door times, that we’re kind of playing for the team, right? And the, uh, anyway, so, so that happened. And right now we have a trial involving the exact same dynamics against the exact same people, including the same doctor. But UnitedHealth Group at the top, running down the circumstance. And the reason people are at this facility is because they have insurance through UnitedHealthcare, sending them to UnitedHealth Group’s medical. And then the people here are getting bonused based in part on door-to-door time.

Kimball Jones:
Anyway, so we have a trial where a woman went blind next year, and she went into the place her insurance company was telling her to go to, not understanding all of this connection.

Bert Martinez:
Right.

Kimball Jones:
And they kept sending her home as though she had no problem. And she actually had an aneurysm that was going on. They didn’t do a CT scan, didn’t do anything, and it ended up completely compressing her optic nerve and she ended up going blind because of it. And, um, and again, like when you talk about the insurance dynamic and how it’s being controlled in a case, our allegations there are that this door-to-door time is the reason she kept getting discharged, this bonusing program. And they’re operating the entire, the entire octopus. Right,

Bert Martinez:
right, right. That’s crazy. But That’s unfortunate. But again, if you’re a multi-billion-dollar conglomerate, it makes sense to be able to, what do you call it, for lack of better terms, take care of the patient from the time of the accident until they’re in the grave. Sooner or later, they’re going to start owning funeral homes because it’s part of the timeline. We all have to die.

Kimball Jones:
And they used to not be allowed to do this, right? They call this vertical integration, right? And so Anyway, it’s, it’s catastrophically bad for healthcare. It’s catastrophically bad for consumers. They’re making an enormous amount of money doing it. They’re cheating people at every level. It’s, it is so, so, so bad. But yeah, it is built into the system. And oh, I mean, it’s, you hope there’s going to be some political will to fix that at some point.

Josh Barrett:
It wasn’t enough to insure and assess the risk. Now they have to control the outcome.

Bert Martinez:
Right, right. And again, to your point about this $100 million having no impact on them, I always think about if they just did the right thing, that would have such a positive impact, right?

Kimball Jones:
Absolutely.

Bert Martinez:
Because instead of us talking about a $114 million verdict against USAA, We would be talking about something else maybe, or something like that. You know what I’m saying? Where here’s a company that it isn’t a mom-and-pop where they’re barely hanging on by a thread. This is a multi-billion dollar— I think last year, and again, I could be wrong, they did something like $6 billion in profit.

Kimball Jones:
In profit. And when you look at insurance company profit, never trust it because they don’t have to play by the normal accounting rules. And so with insurance companies, really it’s better to look at revenue because they can hide things through different subsidiaries in a way that nobody else can. And so literally, they literally get to play by different accounting rules. So when they say that they get, they’re making X in profit, you should assume it’s quite a bit better than that.

Bert Martinez:
Right.

Kimball Jones:
Because depending on the year and whether or not people are annoyed with insurance companies, which they’re becoming more and more annoyed, you can pretty much guarantee that their profit numbers have a degree of fabrication in them.

Bert Martinez:
Sure, sure.

Kimball Jones:
Yeah.

Bert Martinez:
I mean, come on.

Kimball Jones:
Yeah. But their revenue numbers, they can’t run from those.

Bert Martinez:
Right.

Kimball Jones:
And so that’s just the money that came in the door, but they can manipulate the numbers before it goes to showing a bottom line profit. So anyway, as you look at it, $6 billion in profit. Yeah, they probably announced that. Is that— but who’s he? Yeah,

Bert Martinez:
because to your point, if they spent, you know, let’s say they had $8 billion in profit, but they spent $2 billion acquiring somebody else, that’s not an income anymore. It’s— or however that’s going to be accounted for. But bottom line, they would take that off their profit. Go ahead.

Kimball Jones:
Well, exactly. And there was— I don’t know a lot of the intricate details, but I know that State Farm, for example, presented that they had lost all this money in California because of fires and things like that. Right. Right. But there were some people that looked at that technically and said, well, not so fast. In fact, State Farm, the California State Farm California, they alleged had been, had been siphoning out money and sending it to State Farm parent company in Illinois to create the impression of lost money in California when they had been killing it in California. And they were able to present a different picture just due to how they structured the numbers, essentially. So, and, and when I say that, for example, Instead of, instead of claiming all of this money for State Farm California, they would say, well, something to the effect of consulting services and then ship out a huge portion of the money to parent company.

Bert Martinez:
Right.

Kimball Jones:
And by so doing, they can create an impression that State Farm California is really struggling. So they need the insurance commissioner to raise rates right in California because they’re, they’re having a hard time. Right. Now, to be clear, I’m not saying I specifically know the intricate details there with State Farm California, but I remember that coming out. And what I read seemed pretty compelling that, that it didn’t seem to be so clear-cut. Right. They’ve been having such a hard time in California.

Bert Martinez:
Right. Well, and let’s all remember Enron. You know, Enron to me is the poster child of creative accounting, right? For years they were, they were making profit hand over fist until they collapsed and people lost their not only their job but their 401 or whatever. It’s incredible.

Kimball Jones:
Yeah.

Bert Martinez:
So yeah, I mean, it’s out there. Correct me if I’m wrong. So with Timothy’s case here or Mr. Kuhn’s case here, was there a point where USAA was trying to blame Timothy? In other words, saying that it was his fault that he got hit? Was there anything like that?

Kimball Jones:
So they From a technical standpoint, yes, they did. So, so, and you can just, I guess, scratch that up to carelessness. They knew, of course, it wasn’t his fault, but then they alleged legally that it was his fault in, in the legal pleas.

Josh Barrett:
And part of that is because they took the side of the person who hit him when they came into the case and stood into that person’s shoes.

Kimball Jones:
Gotcha.

Josh Barrett:
And so then they did what defense insurance companies do and blame the person who got hurt. And so, like Kimball said, technically in the, in the case, they were pointing the finger at him and asking that he pay their attorney’s fees and those types of things.

Kimball Jones:
That’s incredible. That’s— yeah, it was, it was bizarre. And, and on the stand, when I brought that up, the— I think at one point the defense objected. And when I was asking him, I’m saying, you guys are saying that Tim should pay your attorney’s fees here, isn’t that right? And the adjuster tried to suggest—

Josh Barrett:
It was the manager, the supervisor, because it was their 30B6.

Kimball Jones:
Yeah, yeah, yeah. Or sorry, yeah, the corporate representative, USAA’s chosen corporate representative at trial, who was kind of a higher-up manager in claims. He indicated that— I don’t remember exactly what he said, but when I asked him, I said, okay, so during opening, USA’s attorney told this jury that perhaps you guys weren’t going to ask for fees or something like that. And I said, so let’s just go ahead and have it out. Can you, can you agree right now, right now on the record, we’re here in open court, that you are waiving any right to try to collect fees in, in this case if Tim loses this trial? Uh, well, I don’t have authority to do that. I don’t, right? I mean, it’s, you know, so they want to have it every way they can. Sure. Right.

Kimball Jones:
This guy did nothing wrong. They wouldn’t pay him, wouldn’t even pay his medical bills, make him go through 4 years of litigation. They finally— they block him from all of his insurance and then they pay it a month before trial. The other insurance company pays also before trial.

Bert Martinez:
Right.

Kimball Jones:
And then in trial, they still say they should win and that he should pay their attorney’s fees and costs.

Josh Barrett:
And then that night after that testimony, they went back and withdrew it legally and said, no, no, no, we’re not asking for it anymore.

Kimball Jones:
Yeah.

Josh Barrett:
But then didn’t tell him about it.

Kimball Jones:
Yeah. So the next day I had him on the stand again. I said, hey, so I saw you withdrew it. He’s like, oh, I don’t know anything about that. Okay. So, but it’s crazy. You have to put him on the spot in, in the spotlight. And, and that whole trial was, was broadcast.

Kimball Jones:
And so it’s, it’s all on video. So anyone can watch it. And so everybody in, in law at least was able to see what USA was doing. You know, and so

Bert Martinez:
that’s incredible. Yeah, that’s— well, and you and I were talking, we were both talking about marketing. And to me, not just the insurance industry, but the insurance industry is pretty good at their marketing. And so one of the great fallacies that they’ve been able to push is the whole tort reform, right? That you’re paying higher prices because these, quote, bad attorneys are costing us more money. And I can’t remember the numbers, but somebody put the numbers together of if you take all of the insurance companies out there and you put their profits together versus what the, what do you call it, plaintiff attorneys have won over the last, like, I think it was 20 years. It was like, you know, the drop in the bucket, right? But when you hear it from the insurance side, You know, they’re just being mangled, you know, uh, by the, by the plaintiff’s attorney. It, it’s, and it’s, uh, it’s great. Yeah.

Bert Martinez:
From, from the marketing standpoint of view that they can push that false message out there and a lot of people believe it.

Kimball Jones:
Yeah. And, and the thing is, it’s, it works so well for a couple of reasons. First of all, they pushed it for so long with no resistance and bigger budgets to push it than anyone that can push back. But the other reason is that it feels intuitive. For everybody, they feel like, oh, well, there’s a cost associated with paying a claim, so the amount they charge is probably connected to that cost that they have to pay out on claims. So it feels intuitive, but it’s actually a lie. It has almost no impact, almost none. And the reason we know it has almost no impact is, like with a number of things that feel intuitive, you can actually do scientific studies to try to draw whether there’s a correlation or there’s a causative effect.

Bert Martinez:
Right.

Kimball Jones:
Well, we actually know there’s no causative effect, has no impact actually to the degree that boardrooms have been analyzed and things like that. No, has no impact. But even from a correlation standpoint, it has no impact. And where you see it best is where they have really been able to get tort reform implemented in the most severe cases. And then you run studies on it to say, oh, how did this impact insurance rates? And so in Nevada, We happen to have really good data on this because in the early 2000s, the tort reform movement was able to just crush medical malpractice, made it so that a doctor kills somebody recklessly. The cap—

Bert Martinez:
maims them.

Kimball Jones:
The cap, $350,000 for all human losses, right? Not including medical bills. Medical bills may be paid for, but when it comes to the suffering of a family, suffering of a person, $350,000 is the cap. for the entire thing. That’s obviously very unfair. No one would value extreme suffering or a loss of life in that way. But that’s, that’s how they were able to cap it. So then we look at what happened to the rates. The rates went down, right?

Bert Martinez:
No,

Kimball Jones:
no, no, rates didn’t go down. But you know what did happen? What? The insurance companies in Nevada— normally an insurance company will make somewhere between 2 to 5% on, on the margin based on what they, what they pay out and their, the various things. So they have a very, a very thin margin of gigantic numbers, which ends up being billions and billions of dollars.

Bert Martinez:
Right.

Kimball Jones:
But the margins tend to be 2 to 5%. In the medical malpractice world, it went from that to being 50% margins.

Bert Martinez:
Wow.

Kimball Jones:
In insurance, they charged doctors more. Litigation did not go down. Right. In fact, it created a scenario where worse doctors kept practicing longer or moving to the state because you can get away with it here.

Bert Martinez:
Right.

Kimball Jones:
Right. So it’s a bizarre thing. If you want to— you look at the state of Texas, and Texas has a number of great things going for it. Something it doesn’t have great going for it is medicine in terms of malpractice. Texas is like a magnet for bad doctors right now because you can’t really sue them. You can’t. It’s so hard to get justice when they maim you. That’s why the Dr.

Kimball Jones:
Death podcast took off. It isn’t random that it happened in Texas. It happened in Texas because the risk of hospitals telling the truth about this guy was, was worse to tell the truth because they could be sued by him than it— than the risk of not telling the truth. Because no one could ever hold them accountable for lying about his background and what he had done to patients. Wow.

Bert Martinez:
Right? It’s incredible. But think about it. If, if you’re an insurance company or a hospital or anything like that, and you’re capped at paying $250,000 or $300,000 for medical malpractice, you’re almost incentivized to, to not give a crap. And yeah, let’s go to court because the most you’re going to get from me is 3 years, you know, whatever it is, $250,000, $350,000. whatever, depending on the state. So it seems so reckless to me. And, you know, so I was a Republican when tort reform in Texas— I was born, you know, raised in Texas. And when I saw this, I’m thinking, how can a, just a, a decent human being think that this is a good deal? How can, how can a bunch of people get together and say your pain and suffering means nothing.

Bert Martinez:
We’re gonna, we’re gonna cap it out at this amount of money. Have, you know, have a great day. And, and that’s when I stopped being, you know, a wholehearted Republican, because at that point it’s like, that doesn’t even make sense. And, and so yes, both political parties, you know, unite with other, you know, what do you call it, uh, businesses or whatever. But that just blew me away that, that somebody got together and said, oh yeah, let’s make this happen. This will be good. And Bottom line is somebody got paid to make tort reform happen in all those states, right?

Kimball Jones:
100%. I mean, anybody who’s met a lot of politicians starts realizing these guys aren’t the smartest people in the world. There are some very bright politicians. Sure. There are some politicians who make it far that aren’t bright.

Bert Martinez:
Right. Well, you know what? They’re charismatic.

Kimball Jones:
Yeah. Generally. Yeah. Yeah. I think that’s right. And at the end of the day, like some of these politicians just probably buy into it just because of the intuitiveness of, of the argument itself. But it’s actually absurd from a scientific standpoint. It’s not actually true.

Kimball Jones:
There’s no truth in it. It’s a made-up thing by insurance companies who are very motivated to have people believe these things because all it is is upside profit. They can get things capped at any level. And so to the degree that they are able to reduce payouts, it’s good for them. Not that it will ever impact what they charge, not that it will ever impact anything like that, but it certainly, you know, There’s more upside, obviously.

Bert Martinez:
Right, right. All right. Back to Timothy. Let’s— there’s this thing that we’ve been talking about. You’ve mentioned bad faith already. Explain to our audience, what is bad faith? And is any kind of bad behavior bad faith? Walk us through it.

Josh Barrett:
No. So there, in this particular context, you’ve got what’s called first-party bad faith. First-party meaning that it’s the own insured under their policy. And so the insurance company owes duties to that insured, to that individual. And one of those main duties is they have to put their interests equal, because it’s really easy for the massive company that has all the money, that has all the power, to then take advantage of the individual. So the law says you can’t do that. You have to treat them as though you’re looking out for their best interest. You have to put the interests at least equal, but you can put theirs above yours, which I haven’t seen it happen yet, but they certainly could do that.

Josh Barrett:
And so when they breach that duty, when they stop doing what they’re obligated to do, that’s where it can rise to the level of bad faith. Making a close call that just turns out on the wrong side of something may not be bad faith. But offering less than the medical bills, hiring experts, one who says that he’s not an expert in traumatic brain injuries, and hiring him as the expert in a traumatic brain injury case— Right. Hiring an expert that lies about the exam that you know is lying about the exam. Those types of things just show how egregious their behavior was. Dragging this out for years just to then turn around and say, you got us, here’s the money. Those are the types of things. It has to be, you know, more than just like a reasonable mistake.

Josh Barrett:
It has to be something that’s a clear breach of their duties.

Bert Martinez:
Gotcha. Gotcha. Go ahead.

Kimball Jones:
Yeah. Surprisingly though, that’s like all the time. It’s like structurally what they do intentionally now. And it literally is in most cases. The only time almost, I mean, this is, it feels to me like the times that they don’t engage in bad faith structurally is when the risks are so great and so obvious to do so that it would be just catastrophically reckless. Where they can engage in bad faith and there’s no major downside to do so, it has gotten to the point where they commonly do it, if not most of the time. It’s really kind of scary.

Bert Martinez:
Standard operating procedure now.

Kimball Jones:
Yeah. Yeah. So as an example, if there’s a $100,000 insurance policy, and the person has suffered damages and the medical bills are $10,000. This is a person that just went to the hospital, has an $8,000 hospital bill, went and treated with a physical therapist for a couple of weeks, and they’re good, right? Well, you’d expect the insurance company to value that at least more than $10,000, right?

Bert Martinez:
Right.

Kimball Jones:
But they often don’t. And the reason why they don’t isn’t because it’s not bad faith. It clearly is bad faith. But they know that on a small little claim like that, who’s going to ever hold them accountable? Right. Right? And worst-case scenario, is it going to be for more than $100,000 than the policy? So they know, and they place their bets on those cases routinely and offer $8,000, $12,000, $15,000, small amounts where they know that the case value is higher than that, but they don’t care. And because the risks are not too great. In that same case, if the person has a $500,000 hospital bill, well, they’re not going— they’re going to pay the $100,000 right away because if they don’t, then the consequences to them could be severe. Same bad faith or same proposition, but when the degree of risk changes dramatically, they tend to operate a little bit differently most of the time.

Kimball Jones:
But again, not always, surprisingly.

Bert Martinez:
Right. Well, in the case, in your first example there where it’s $10,000 worth of medical bills on a $100,000 policy, Again, a lawyer may look at that and say, you know what, whatever. Or maybe the lawyer may take it on, but now it’s going to be a 1 to 3 year fight where the consumer’s going to go, I’m exhausted. You know, I got medical bills that are pounding at my door and there’s no resolution in sight. I’ll take whatever and move on.

Kimball Jones:
Yeah, that’s exactly how it happens. And they know those pressures on people, right? They know exactly what a person is going through in that situation. And so, you know, when we meet with the clients, you know, it’s like, look, this is tough, right? This, this is the reality. This is how our everything is structured. And it’s, it’s a bummer because sometimes, you know, the insurance company is going to cheat this guy. They’re not going to do the right thing.

Bert Martinez:
Right.

Kimball Jones:
and the options are not great. And in those cases, I would say they do it 80% of the time. They engage in that behavior.

Josh Barrett:
And that’s also built into their duties. They have to diligently search for evidence. They have to timely do their investigation. They’re not supposed to be sitting on their hands and dragging this out. And in Tim’s case, we talked about earlier how brain injuries just don’t— you can have somebody with a brain injury who looks normal, who presents normal.

Bert Martinez:
They don’t manifest immediately.

Josh Barrett:
And so we’ve got that person in this case who’s very functional, but not like he was before, and so we’ve given USA early in the case names of people that were around him. Those same witnesses that came and testified at trial about pre-crash Tim versus post-crash Tim. USA had that information and then didn’t do anything with it for years. They didn’t take their depositions. They didn’t make any efforts to actually talk to them and see what they were going to say about Tim. They just said, this is our position. You don’t like it? You don’t like it. That’s fine.

Josh Barrett:
And so that’s one of the things where they just delay things out, hoping that it will wear somebody down, all while not doing what they’re supposed to be doing.

Bert Martinez:
So just to be clear, in a case like that where you’ve handed over— I’ll use the term witnesses— over to the insurance company, if they were doing what’s best for Tim, they would have contacted those people and said, hey, tell me about Tim before and after. And then they theoretically would have made a decision, hey, We’re either not going to change our mind, or after talking to these witnesses, there is a possibility we could be wrong. And so let’s see if we can settle this.

Josh Barrett:
It’s even simpler than that. They could have contacted us and said, hey, we want to depose these individuals. We want to talk to them. We would have set it all up. We would have lined it up for them, and they could have taken their depositions. And they didn’t do any of that. In fact, we were telling them, if you question his injury, talk to the people around him. And they’re like, don’t tell us how to try our case.

Josh Barrett:
Don’t tell us how to litigate it. We know what we’re doing. So

Bert Martinez:
we’re the, we’re the big insurance company. We know what we’re doing, right? And, and, you know, I guess they do. So they’re still making $6 billion profit. You know, you, you can’t argue with the numbers there. And, and I think also we have, uh, with, with the current administration that I think emboldens people to misbehave. For lack of better terms. I mean, you have these massive corporations that are, that I’ll say are benefiting from the current administration. And I think some of these, some of these big firms, uh, not just insurance companies, but just big multi-billion dollar firms are like, and they’re enjoying a, uh, a, a, what do you call it, a time of, I don’t know, just, uh, getting away with it.

Bert Martinez:
I’ll say it like that. Never before have I seen so many, I guess, large corporations just taking advantage of consumers. Anyway.

Kimball Jones:
Yeah, it’s— I mean, I’m— without talking politically too much, there’s a feeling that corporations can kind of get away with anything. And When you, when you look at the shooting of the UnitedHealthcare CEO, I’ve never seen anything like it in my life. And what I mean by that is how people were mostly genuinely happy that it had happened.

Bert Martinez:
Right.

Kimball Jones:
Um, you have a man murdered in the street. Nobody really knows anything about him except for he’s the CEO of this company who has done really despicable things. And People are very happy that it has occurred. And that tells you about where we are, not about people being bad people. It tells you how abused people feel, right, by these corporations who have really done despicable things and are doing despicable things and getting away with doing despicable things. And, and insurance companies, you know, they’re, they’re a group of these corporations that we deal with every day. So we know what they’re doing. But it is a— yeah, I mean, there’s, there’s a flaw in the system that is really problematic where corporate profits, corporate income, corporate revenue tends to be highly valued and protected, but then the harms to individuals seems to be something questioned at every turn.

Bert Martinez:
Right.

Kimball Jones:
And, you know, I’ve I’ve given this example before, but I had a defense attorney tell me earlier this year that I just overvalue the harms that my clients have been through. And I said, okay, okay, so tell me about that. What do you mean? And he tries to explain it. I said, okay, let’s do this. Somebody loses their pinky finger. That’s it, right? They have their pinky finger cut off. They experience the pain of having it cut off. That’s the extent of it.

Kimball Jones:
How much is that worth? And they no longer have a pinky. He said, oh, I don’t know, $50,000, $100,000. I said, okay, great. So let’s go ahead and do an experiment here. I will pay you $100,000 and we’ll have your hand put up on a block and we’ll take your pinky finger. Oh. And he immediately, oh, that’s ridiculous.

Bert Martinez:
Right?

Kimball Jones:
And I’m like, right, it is ridiculous because you know that that’s an insane undervaluation of a real human’s pain and suffering.

Bert Martinez:
Right.

Kimball Jones:
A person losing a pinky, no one would sign up for that for your insurance rate nonsense. Nobody’s signing up for that bullshit. Right. And so, well, how should we value it? Well, we should value it the same as anything else. When you go and when I bought this shirt, you bought that shirt, you bought your house, your car, whatever, you paid a price that you thought you would value it at. And so if we’re trying to identify the value of suffering, of what a person has gone through, the only fair way to do it is to say, what would a person have had to have been paid to have taken on that, to have lost that in their life? Right. And so we do that every day with corporate profits. The numbers are easy, right? Somebody defrauds a corporation.

Kimball Jones:
Yeah, real quick. Yeah, they should It should be the amount of that and the consequential damages and the rest. Well, what about the person who suffered a brain injury? They’re not the same person they were before. The canvas of their life has been torn. They have— you see what I’m saying? Right. And there’s this hesitance to fairly value that. And I’m not suggesting that it should be valued for more than it is, but my goodness, a human A person should have what they lose be valued every bit as much as a corporation would at the fair value of what they would need to be paid to lose the thing they lost.

Bert Martinez:
Right,

Kimball Jones:
right.

Bert Martinez:
Absolutely.

Kimball Jones:
Yeah.

Bert Martinez:
Well, and I think that is a great analogy because it’s so easy to sit here and say, just look at numbers. Oh, that pinky’s worth, you know, whatever, $100,000. But let me cut your pinky off. That changes, that changes everything. And back to Mr. Kuhn, Timothy, he didn’t sign up. I mean, I guarantee if you said, hey, we’re going to give you, uh, a brain injury, or, you know, you can, uh, we’re going to give you a brain injury and possibly you’ll get a bunch of millions of dollars eventually, or you can avoid that millions of dollars and just have a normal life, I guarantee you he would have picked the normal life

Kimball Jones:
every time. There was no amount of money that could have been offered,

Bert Martinez:
right,

Kimball Jones:
to, to Tim that he would have taken this on. Like, it just— it just— imagine what a person would have to be paid to have their life disrupted where you can’t even think the same way anymore, right? It’s— it— that makes no sense. You’re going to interact badly with the people you love the most, and you’re not going to treat them as well as they deserve. And then you’re going to go through these cycles of shame Because afterwards you start having moments that are a little bit better where you’re thinking a little bit more clearly, like, oh my gosh, what did I do? Right? Like, this is the new life, right? This is the new normal. Like, it’s, it’s a thing, you know, it’s, it’s pretty crazy. And so, yeah, I think we have a real problem with being very judgmental about what other people have lost.

Bert Martinez:
Yes, absolutely.

Kimball Jones:
And like fairly valuing that. while at the same time not doing the same thing with the gains of these gigantic billion-dollar companies. Right,

Bert Martinez:
right, right. And I think part of that is because it’s very abstract. I mean, for us, at least for me, for me, I can’t wrap my head around a billion dollars.

Kimball Jones:
Yeah.

Bert Martinez:
$6 billion or anything like that. I can barely wrap my head around a million dollars. I mean, I’ve seen a, I’ve seen a million dollars one time physically, And it’s a huge stack. A billion dollars. I just can’t, I don’t have that concept in my head. And I think also back to what you’re saying, people hear $114 million and they hear it in a vacuum. Oh man, that guy got lucky. I’d suffer a brain injury for $114 million.

Bert Martinez:
No, you really wouldn’t. Because typically brain injuries, not only do they last for a long time, Seldom do you recover 100%. Maybe if you get lucky, you’re at 99%. But also now you’re more susceptible to cognitive decline.

Kimball Jones:
Right.

Bert Martinez:
So who knows what’s going to happen to Tim?

Kimball Jones:
Right.

Josh Barrett:
Well, and like when Kimmel and I are looking at like, what is a case worth?

Bert Martinez:
Right.

Josh Barrett:
We look at if this case goes to trial, what’s a reasonable jury going to award? The insurance company, they’re looking at spreadsheets and tables and they’re saying, well, how much can we get away with not paying? What, what will they negotiate to? What can we offer them that’ll still bring them to the table without them, you know, running to the courthouse? But they’re not looking at the individual personalized suffering that they’re supposed to be.

Bert Martinez:
Yeah. And I think that that’s what bothers me the most, that, you know, at USAA— excuse me— and insurance companies across the globe, a bunch of humans get together and figure out ways to not do the right thing. You know, what— how much can we push that line? What can we do? Uh, same thing with automakers. How many times automakers have been caught knowing that, hey, we’ve developed this bad car, and if anybody looks at it the wrong way, it’s going to blow up, but, and we’re not going to worry about it because by the time it gets to court, we would have made all our money, blah blah blah. But it’s, it’s terrible that that’s the way certain humans think that, hey, there’s a—

Kimball Jones:
yeah,

Bert Martinez:
a number that we could put to everything.

Kimball Jones:
The crazy part about it is if it was a thing where like it was just a couple of people thinking this way, then it would be something where you’re like, oh, okay, there are some bad, bad apples. But, but it’s not right. We know that the structural mechanism within these corporations leads people to this and it’s, it’s a real problem. So we are told by the United States Supreme Court that corporations top ethical duty is to their shareholders, right? It’s a stupid case that, that is still the law of the land. And so that creates this ethical insulation to, to do things on behalf of investors that are damaging to the public,

Bert Martinez:
right?

Kimball Jones:
Right. And literally, literally, they’re being told they did the ethical thing by doing so, right, along the way. And so these executives, as they’re thinking through this, They think about ways that they benefit personally, and then they can always use that as a fallback position. And so why I say that is with the Ford Pinto, we know, for example, that there was evidence that they actually ran that calculation, the $14 whatever piece of steel that would stop families from being burned to death when rear-ended. Steel section. Over all of the cars, they actually calculated the death and the lawsuit value at a certain amount per death, and they chose to not put in the plates or do the recall.

Bert Martinez:
Right.

Kimball Jones:
And so that was an actual decision, which seems insane in a vacuum, except then look at asbestos. What happened with asbestos? Well, asbestos did the same thing. They saw they were killing all these people with cancer, with mesothelioma, and what did they do? Well, they actually ramped up marketing of asbestos immediately after that finding. They didn’t pull it from the shelves. They ramped up the marketing and lied to the public.

Bert Martinez:
Wow.

Kimball Jones:
Cigarette smoking, the cigarette companies, the same thing. They engaged in a— in the most widespread demonstrated fraud in the history of the world, as far as I know, to lie to people about the impact of smoking, to suggest all sorts of things. And so you see it in industry after industry after industry, and they’re willing to do it when they run the numbers and they’re self-interested by doing really well. And the insurance companies, the same exact thing. And so it’s quite a thing that the troubling part is that the structure of multi-billion dollar corporations by their very nature appears to lead to this exact behavior if the opportunity is presented. And that’s the scary thing.

Bert Martinez:
Yeah. Yeah.

Kimball Jones:
Right.

Bert Martinez:
Well, back to your point about the CEO who got murdered and we caught it, even caught it on video. I think that, as you said, it shows how frustrated and angry we are with the way the system is set up. And then to make things even worse, the current DOJ structure has really fumbled this case time and time. I mean, they just keep like screwing something up. It’s like, are they even trying to prosecute this guy? Right. Anyway, that’s, that’s it.

Kimball Jones:
In the, in the Kuhn versus USAA case, when we were picking the jury, this ended up being a topic that came up. And we had an ER physician, an ER doctor who was on the panel that raised his hand and said, I can’t be fair. I hate insurance

Bert Martinez:
companies.

Kimball Jones:
And he said, he said, I’ve got to tell you, as an ER doctor dealing with insurance companies all the time, it’s like when I get up in the morning, I’m not a religious man. But I do pray to what’s his name?

Josh Barrett:
Mangione.

Kimball Jones:
To Mangione. I really hope that he gets off or something like that. It was— I mean, this was something that like came up and everybody’s— some were kind of aghast, others were just laughing out loud in the room. And but like that tells you, I mean, this isn’t like some just random weird guy. No, no. This is an ER physician who seemed very, very smart. And he was, of course, a little joking kind of with that. But he was very serious that he was feeling abused by insurance companies and what they were doing to him,

Bert Martinez:
right?

Kimball Jones:
Such that he hated them and couldn’t be fair in a case involving one.

Bert Martinez:
Yeah. Uh, I met a doctor, uh, to this day he doesn’t take insurance.

Kimball Jones:
Oh, there’s many.

Bert Martinez:
Yeah. Yeah, because they— it’s just such an abusive relationship, right? One-sided.

Josh Barrett:
Well, and I think, I mean, people generally are very, very frustrated with this because If I miss my payment, the insurance company isn’t going to be like, oh, we understand we didn’t give you everything that you were entitled to, we’ll give you a break. Like, there’s no wiggle room for me,

Bert Martinez:
right?

Josh Barrett:
But then they want to manipulate the rules and take advantage of whoever they can for, for their benefit. And I, I think that’s come across, across the entire industry, and people are fed up with it.

Bert Martinez:
Yeah, it is incredible. Uh, and I think somebody pointed out that I forgot how many billionaires we have here in, in America, but like, I think 24 of them come from the healthcare industry. So if you’re making your billions, right, if you’re a billionaire because of healthcare, you’re not going to be anywhere motivated to, to fix that system. Because why would you? Why would you hurt yourself when I can hurt everybody else?

Kimball Jones:
Oh, yeah, it’s— they— yeah, they’re, they’re raking it in hand over fist. And When you look through how private equity and how the corporate takeover of all that has impacted things, doctors are not getting paid more. They’re oftentimes getting paid less, especially when you consider inflation. And on the other hand, they’re making more and more money in healthcare. The healthcare costs are rising, but it’s being funneled to managers, to executives, to things like that. It’s a pretty gross situation they have going on.

Bert Martinez:
Absolutely. And, and I think, uh, you had mentioned again how these adjusters are being brought in inexperienced, you know, and, and, and the old adjusters are being kicked out. I think the same things are happening with the medical profession. You know, now more than ever, you’re finding younger and younger people, uh, who have no experience. And then the guys who did have experience end up going off and opening their own shop because they have to. They’ve been forced out.

Kimball Jones:
Oh yeah. I mean, we, so we handle cases involving medical malpractice sometimes. We’re very selective. Right. Cases. But what we’ve found is that cases involving hospitals where like a doctor has messed up and like misdiagnosed someone in a hospital, in almost all cases, yes, the doctor messed up. But really the big picture truth of the matter is that there was a massive understaffing that appears to have been intentional. by the profit makers within the gigantic corporate hospital system.

Bert Martinez:
Right.

Kimball Jones:
And after the fact, the people who are in there digging in on the audit trail behind the scenes, the medical records you don’t get unless you sue them and you get their audit trail, aren’t so much the doctors and nurses. They’re a bunch of risk managers going in and manipulating things. The last trial we had, uh, where we had one of these last year where Our client was catastrophically injured. Literally, we had a nurse who lied, who put in a fabricated note of treatment she gave that she didn’t give. We actually have her putting in the fabricated note. It’s all on video. Wow. And then she didn’t do the things she lied about.

Kimball Jones:
Then we have another nurse, seemed like a really nice guy, who was directed by somebody that he doesn’t know, wouldn’t give the exact name. He was directed to go in and put in a false note about something, some occurrence that they told him had happened that he didn’t know to be true to try to cover, right? It’s a CYA note from the hospital saying, no, no, no, we tried to get him transferred to the right place and stuff. But literally after the fact, they have a nurse go in and fabricate a note. And then when we deposed him, he was unwilling to lie about it and he told us the truth. And he said, look, I didn’t know that to be true. I was told to do that by my boss. Oh goodness, I can’t remember who my boss was. Right.

Kimball Jones:
But, but truly, I actually believe that, that he— I don’t know if he remembered who it was. He probably did. But

Josh Barrett:
he’s got to work.

Kimball Jones:
Yeah. I mean, but this is— I see, we see this over and over again with these big, huge hospital systems. They, they’re so— they’re constructing it for profit, not for care. And it’s becoming more and more that every year. It’s the corporatization of, of Medical, particularly in the hospital system, is catastrophic. It is so bad. And it goes all the way to the basic frontline nurses. They used to— you rewind 7, 8 years ago when they had their annual review, right? You can see this in their annual reviews.

Kimball Jones:
They would be asked questions about patient care and how much they were dedicated to the patient and patient safety and all of these things, the things you’d expect.

Bert Martinez:
Right.

Kimball Jones:
You barely see that. in their reviews now.

Bert Martinez:
Wow.

Kimball Jones:
The actual documentation now deals with things like I said, door-to-door time type of things, like efficiency metrics, right? Things, things that have nothing to do with patient care, nothing to do with patient safety. They’re being judged and being trained on the job at hospitals to push patients through as a money-making opportunity,

Bert Martinez:
right?

Kimball Jones:
It’s, it’s a really tragic situation we have going on.

Bert Martinez:
Yeah, no, it’s, it’s gonna get worse. All right. So, uh, we’ll focus back on, on Timothy Kuhn here. So you’re getting ready for trial. How much time are you guys prepping for trial? So you’ve already, at this point, you guys got together, we’re gonna have to sue them, we’re gonna have to go to trial. Are you guys spending like a day every week? Is it, and, and it ramps up as you get closer? How does the whole prep work?

Josh Barrett:
Yeah, so I mean, obviously more prep the closer we get to trial. And in this case, we were prepping for trial when they paid the policy, and then the trial got moved. And so we had a lot of that prep already done. And then, um, as we got closer to the actual trial, then we finalized all the prep. I mean, we probably spent 2 weeks working on it every single day, um, in addition to all the, the prior prep that we had done.

Kimball Jones:
Yeah. I mean, it’s like the opening statement that we did in that case, just the opening statement. I would estimate that I spent 60 hours just putting the opening statement together. And, you know, that’s a small part of the trial, obviously. Right, right. But yeah, so it’s, it’s an all-day thing. I mean, you’re putting in 16, 18 hours a day pretty consistently all through trial and then Maybe more like 12 to 14 hours a day, um, in the 2 weeks, 3 weeks before trial.

Bert Martinez:
Wow. Wow.

Kimball Jones:
Yeah.

Bert Martinez:
You’d mentioned jury. So walk me through jury selection in a case like this. Is, uh, I’m not familiar with Nevada law. Does Nevada give you, uh, is there a time constraint where you got 1 or 2 days to pick a jury? How does the whole jury selection work?

Kimball Jones:
It’s judge dependent, but Nevada gives plenty of time for jury selection. Basically, as long as you’re, as long as you’re appropriately trying to assess the jury and making sure you’re getting rid of jurors that are gonna be unfair and you’re, you’re doing that. You get a lot of leeway in Nevada, which is a really good thing because you end up having a better shot at getting a fair jury. There’s— so, so in this case, I want to say jury selection took— it went into at least 2 days.

Josh Barrett:
2 days. I think it was 2 days.

Kimball Jones:
Yeah. So it was at least 2 days. Now, a lot of that is the judge and it’s both sides asking questions to the jury. And so, and yeah, and also there are jurors that can have kind of To me, I call it a trick. But, but the defense, the defense, um, what they’ll do is they’ll get up in jury selection oftentimes, the insurance attorneys, and they’ll say, uh, who here like feels sympathy? Well, you know, do you feel like sympathy is going to— you’re a sympathetic person, you know, you empathize with people. Well, do you think that would make you, if you heard some evidence, and they’ll try to get people off because they, because they’re a person who like feels something as though anybody doesn’t. Right,

Bert Martinez:
right, right.

Kimball Jones:
And so, so part of what you have to do is you have to make sure you talk to the jury and, Verify that, that nobody’s going to make decisions based on sympathy and that in fact any decisions made are going to be, are going to be fair, reasonable decisions. And but not— but they’re not going to be tricked into thinking just because they actually have a human emotion, right, that they’re not— they can’t be a juror. Right. Which is, which is kind of the way the insurance likes to try to frame it. Oh, hold on. You feel things sometimes? Well, I don’t know.

Bert Martinez:
We can’t have this guy or this person on the jury. Yeah. All right. So we kind of touched on this a little bit, but as, as you’re, I guess, involved in trial and again, they paid the policy limits, are there settlement talks in between all this up until the, I guess, trial?

Josh Barrett:
There can be.

Bert Martinez:
In a normal scenario, is there? Not in this.

Josh Barrett:
In most cases there are.

Bert Martinez:
Right.

Josh Barrett:
The conversation about most cases settling on the courthouse steps. There’s a reason for that. As people get closer to trial, there’s risk and it’s more real. But in this case, there were somewhat offers that we had made, but there was really no interest, it seemed like, from them.

Bert Martinez:
Just fell on deaf ears.

Josh Barrett:
Pretty much.

Kimball Jones:
Yeah. At the end of— at the very end of the trial. So we had both finished our closing, our closings, and we knew the case had gone very well. Right? We had just—

Bert Martinez:
You felt that? You felt, oh man, we’re good.

Josh Barrett:
So this, this was before the decision came back. The jury is in the back deliberating.

Bert Martinez:
Okay.

Kimball Jones:
Yeah. So the jury is talking, they’re off by themselves, and the attorneys were just waiting for the jury, you know. And but we know that we have put on the best trial that we could possibly put on, probably the best trial we’ve ever put on, right? You get better as you go with anything you do. And, and, um, I felt that it was probably the best trial we had ever done. And we are Talking, and the defense comes to us and says, hey, you know, it’s, it’s kind of that time. Do you guys have like a final bottom line number that you’d accept to resolve the case? And, you know, we talked to our client. We didn’t want to resolve. We really wanted to go to the verdict, but, but it’s never a decision for us.

Kimball Jones:
Right. This is a client decision. And so we ended up, the client agreed to offer to settle for $15 million. And we offered it to them and we thought this was a bad offer ’cause we thought the case was much better. We thought we had really done well. And they said, oh, you’re not even in the neighborhood.

Bert Martinez:
I

Josh Barrett:
think it was, not only are you not in the ballpark, you’re not even in the same city.

Kimball Jones:
Yeah. It’s, and so, and no counteroffer, no nothing.

Bert Martinez:
Nothing.

Kimball Jones:
And so, I mean, that makes the decision easy, you know? So we told our client, yeah, they, they, uh, rejected. He is like, okay, let’s wait for the verdict then. Right. And so we, we waited, the verdict comes in, and, and, uh, anyway, so it’s—

Bert Martinez:
I mean, this seems like, uh, like USAA in this particular case, they were like blinders on, you know, because it didn’t seem like they were— again, not that I have any real trial experience or anything like that, but it didn’t seem like it was a normal give and take scenario. You know, it seems like we have this ridiculous number in mind. And as they said to you, you’re not even in the same city, you know, go away. You know, it seemed really that they were just very aggressive when it came to Tim’s case.

Kimball Jones:
Yeah. And, and I will tell you, like, I mean, they brought in kind of— first of all, the, the firm they had on the, on the case, I think was the largest insurance defense firm, like, in the world at the time to begin with. But then they brought in a couple of, like, big trial guys that were like the, the big shot trial guys that USA likes to use around the country. And they came in on top of that firm. So the both firms were, were involved defending the case.

Bert Martinez:
Just real quick, how many lawyers total do you think were involved in this defense?

Kimball Jones:
Uh, quite a few. 3 were there all the time. At, at all times there were 3.

Bert Martinez:
Okay.

Kimball Jones:
Um, there were certainly some behind the scenes and things like that as well, but at trial itself, there were 3 lawyers that handled all of the witnesses and all of the aspects of trial. from 2 different firms.

Bert Martinez:
Okay.

Kimball Jones:
Um, and, um, and they were— I mean, they seemed very confident. I mean, during trial, they, they would commonly make remarks like, well, it’s not like it’s going to get to a punitive damage phase anyway, but, you know, and things like that. And Josh, Josh and I, I mean, it’s not like this is our first— or, you know, we’ve had some success.

Bert Martinez:
Right, right, right. It’s not your first day at trial or anything like—

Kimball Jones:
and, and we knew we knew about how this case was going to go. We had a pretty good idea that it was going to go a certain way, right? But, but it’s not really in our nature to, uh, to kind of, um, I guess boast until it’s, until it’s done. Maybe not boast at all, but definitely I’m not going to boast if we haven’t, if we haven’t won the case. But so my response was just, you know, I— that’s interesting, Bob. Um, so, uh, what was the worst— what’s the worst outcome you’ve ever had? Well, when you’ve been defending an insurance company, you know, and he told me a story, oh, you know, we had this one. It was like a $5 million verdict, but it, it got reversed. And, you know, and so basically the suggestion was that he’s never, like, had a bad outcome. And so, okay, well, we’ll see how this one goes.

Bert Martinez:
All right. So as you guys had already mentioned, $107 million is coming from USAA. That’s what they were pegged with. And then $7 million went to the driver, the at-fault driver. That’s right. Uh, in a case like that, I’m assuming the at-fault driver doesn’t have $7 million. So is that just like waved off? How does, how do you handle that part?

Kimball Jones:
Essentially, insurance money actually takes care of a part of that. And, and ultimately that’s entirely settled. Gotcha. So, so the, the driver actually never did pay a penny outta pocket at any point and got his value from USA.

Kimball Jones:
That’s, and, and so, yeah, so the, the at-fault driver, although $7 million was assessed as Tim’s underlying injury value, not to include the aggravation and such caused by USAA. The— yeah, the driver. So that was a $7 million award. But ultimately, that driver never had to pay any of that.

Josh Barrett:
And we told the jury about that. There was an agreement in place already at the time that this went to trial. And so we told the jury, these are the facts of it. But part of your job is to assess the damages from the crash. Like, Tim’s entitled to know what his damages are.

Bert Martinez:
Who did what?

Josh Barrett:
To get the vindication after being called a liar for so many years by USAA.

Bert Martinez:
Yeah, that’s crazy. And could this have been avoided, you think, with a better or a different adjuster? Because at, at some point the adjuster has to dig their heels in, right? Because the adjuster has the power and they could have said, hey, we’re gonna, we’re gonna go ahead and cut you a check for the $250,000, have a nice day. Or no, you’re, you know, not only are we not going to give you your money, but, you know, Tim’s a— is a liar and this whole thing is his fault. It seems like some of it had to fall on the adjuster, right?

Kimball Jones:
Honestly, no. Like, not as a person, right? When— yes, in terms of, in terms of the, the, the adjuster’s role, yes.

Josh Barrett:
But they have it structured in a way that I don’t think— if I remember correctly from the testimony, there wasn’t any adjuster at USA at her level that had any authority to pay the full policy. It had to go through like 3 different layers and get to the executive layer. before they could make a decision to pay that policy. And they’d structured it intentionally to kind of limit the authority and limit what the adjuster could do to keep control over those types of things.

Kimball Jones:
Yeah. So to like give you perspective, this adjuster was asked to handle this, this case that should have had a value in the millions of dollars. Right. Right off the bat.

Bert Martinez:
Right.

Kimball Jones:
And this adjuster, her total authority of what she was allowed to offer was $25,000. That’s it. So she’s handling a million-dollar case and can only offer up to $25,000. Then, but it gets worse than that. If she goes to her boss, her supervisor, to get additional authority, guess how much she can offer?

Bert Martinez:
Another $25,000?

Kimball Jones:
$80,000.

Bert Martinez:
Okay.

Kimball Jones:
You can get up to $80,000 total. Then if you go to his boss, you’re now at a director of the company. Guess how much that person can offer? $150,000. You have to get—

Bert Martinez:
That’s combined. It’s not $150,000 plus $80,000 plus $25,000. It’s $150,000 combined.

Kimball Jones:
Combined. You’re going through 3 levels. all the way to a director to get there. And if you want more than that, you don’t have to disrupt just the, the director’s life. You have to get an executive and hold a meeting with all 4 of you to get enough to pay this policy. So like, who’s gonna do that? And so they’ve created a structure, right? If you run water down a hill and you make a little trench, it’ll follow the trench, right? Yeah. I mean, they have created A system to make sure that nothing gets paid fairly. That’s the way we viewed it.

Kimball Jones:
That’s the way it was presented, you know, and, and we just believe that’s true.

Bert Martinez:
Yeah. Yeah.

Josh Barrett:
You know, I mean, just based on our experience, right? Any adjuster that would’ve been assigned this case, we think would’ve made some error, whether the offer would’ve been the same amount that was offered in this case or some other amount, it still wouldn’t have been a fair amount. It, it was, the system was set up. to do exactly what it did.

Bert Martinez:
Yeah. Yeah. You were going to say something?

Kimball Jones:
I mean, that’s really it, right? So I— so the adjuster definitely, like, she certainly wasn’t there to help anybody, certainly not to help the insured. But like, you replace her with anybody else in the world, you’re going to get the same result almost. At least anybody who needs the job.

Bert Martinez:
Right, right.

Kimball Jones:
And these people need the job. Right, right. How many people— they’re a first-level adjuster. How many of those people are going to try to disrupt the lives of their boss? of their boss’s boss, of their boss’s boss’s boss, like, just so that they can pay a fair amount to this claimant they don’t know. They’re not going to do it.

Bert Martinez:
They’re not going to do it. No way. No. Hey, again, I have my blinders on. Keep my head down.

Kimball Jones:
Yeah.

Bert Martinez:
Uh, all right, so how long was the trial? Was it

Kimball Jones:
a week? A week? Weeks?

Josh Barrett:
A little over a week.

Kimball Jones:
A little over a week. Yeah.

Bert Martinez:
Okay. And during this week, was there a part Was there ever a part where you thought, ooh, that was, that hurt us, or, uh, that’s a weak spot for us? Or did you feel, man, we got it the whole time?

Kimball Jones:
I mean, I would say that it was a beatdown pretty much the whole time. Yeah. But there was one moment I remember being worried, but then it flipped very strongly for us. So with, uh, Dr. Dixit, we, he had testified in deposition. He was the neurologist that lied about the things. And in deposition, he had said he had been hired by the NFL to evaluate traumatic brain injuries in NFL players. But the way that he said it, it was on behalf of the NFL.

Kimball Jones:
And so I had said that to the jury in opening, that they had hired somebody who the NFL hires to basically discount brain injuries, right?

Bert Martinez:
Right, right, right.

Kimball Jones:
At trial, when they brought him, they actually said, no, no, no, plaintiff’s counsel told you the wrong story. He’s hired by the NFL Players Association to help them. for their players that have brain injuries. Well, that was something that was like, oh my gosh, is the jury going to think I lied to them?

Bert Martinez:
Right?

Kimball Jones:
And so that was, that was like a scary few moments as we’re kind of scrambling to make sure that we’re able to deal with it.

Bert Martinez:
Right.

Kimball Jones:
But ultimately, in cross-examination, it worked out.

Josh Barrett:
It worked out really well because we were able to look up a bunch of the information in real time about the tests that they’re supposed to be running. The, you know, Kimball asked, I think, Well, tell me the names of any of the attorneys that are involved in that NFL concussion litigation. Any of these attorneys that you work with, tell me anything about those cases. And he had no answers.

Bert Martinez:
Wow.

Josh Barrett:
And so Kimball was able to say, does he work for the players? Is he hired by the Players Association? Is he hired by the NFL? I don’t know. Even after sitting here asking him these questions, I still don’t know the answer. But he surely doesn’t know what he— and he didn’t do what he’s supposed to do. when analyzing, you know, somebody with a brain injury. He spent 90 minutes— or 90 seconds testing him and then said, oh, well, he doesn’t have a brain injury because this was a very minor crash.

Kimball Jones:
And something significant, literally while he’s on the stand, between the time that he said that and the time that I’m able to cross-examine him, we have identified that the NFLPA has a very strict concussion protocol. And when someone has been diagnosed with a brain injury, they need a neurological examination estimated to take 90 to 120 minutes.

Bert Martinez:
Wow.

Kimball Jones:
So we had that. And so I get up and as I’m going through showing how he doesn’t even know the attorneys involved, so how on earth could he be going through that? And then I hit him with that. Well, okay, so you’re hired by them. How long do they say the neurological examination needs to be for somebody that suffered a traumatic brain injury? And he’s like, oh, they have no amount of time. I said, oh really? Interesting. Would you like me to refresh your recollection? Because that is dead wrong. And he’s like, uh. And so I literally show him the screen from the NFLPA’s website, and he reads it and he’s like, oh, it looks like 90 to 120 minutes.

Kimball Jones:
And I’m like, right, that’s a little bit different than your 90-second evaluation in this case, right? Uh, yes. Well,

Josh Barrett:
then he tries to deflect and say, well, some of that we spend with the spouse or the partner. As though that’s going to take up the entire exam and justify a 90-second exam. this case.

Bert Martinez:
Wow. I mean, it’s, and, and first of all, you’re, you’re, the reason the spouse would even be involved is because you, they want to get a, uh, what do you call it? A baseline of, of the differences, right?

Kimball Jones:
Bingo.

Bert Martinez:
And this person obviously didn’t even spend any time with Tim, Tim’s spouse, right?

Kimball Jones:
Right. Not at all.

Bert Martinez:
Not at all. Yeah.

Kimball Jones:
So it was, it was, uh, but that was a moment where for sure I was scrambling and I was like, Oh, I mean, I’ve told the jury the truth the whole time, and the way they’re saying this, it’s going to make the jury think maybe that I haven’t been totally forthcoming. And so fortunately, I had Josh with me, and Josh is just screaming.

Josh Barrett:
And, you know, and to be clear, it was the truth. It’s what he said in his deposition, right? He just tried to say, oh, well, I didn’t understand the question, or, you know, I was confused in some way,

Bert Martinez:
right? Right.

Kimball Jones:
Yeah. So we, it ended up being like a huge, big moment, good moment for us. But there was like a moment there where I was like, oh my gosh, I hope the jury doesn’t buy this.

Bert Martinez:
All right. So, uh, how do you guys work the case? And because obviously you’re, you’re, you’re working the trial together. Are you, uh, presenting a certain part of the case and then you present the other part? How do you guys work together as a team on that?

Kimball Jones:
Yeah. Well,

Josh Barrett:
so I mean, the

Kimball Jones:
case, it depends on, it depends on the case, but this case in particular.

Bert Martinez:
Yeah.

Josh Barrett:
Um, we, so we, as far as the case before we got to trial, there was a whole bunch— I mean, we strategized throughout the whole case on game plan. I think I was involved in most, if not all, of the depositions in the case. And then as we geared up for trial, we parsed out, okay, who’s going to do what? And we always go to trial with a team. And so it wasn’t just us two. We had another attorney that was also trying the case with us. And so we split up the witnesses and the parts that we were going to be doing.

Bert Martinez:
Gotcha. Okay.

Kimball Jones:
Yeah.

Bert Martinez:
Anything else that that stood out during trial that, that just, I guess maybe you weren’t aware of, that maybe shocked you, or, uh, I don’t know, anything else in the trial that really stood out to you guys from either side?

Kimball Jones:
You know, um, I— it— by the time we got to trial, we kind of knew what the trial was and what was going to happen, and USAA did not. But, but the degree of arrogance that USAA had throughout was kind of amazing. And I don’t attribute— like, I’m not talking about the attorneys. The attorneys were really good attorneys that USA brought in. They brought in some really good attorneys, right? I mean, I’m sure they paid them plenty. And these guys were clearly very experienced, very likable guys. But they had a very bad case and there was such a degree of confidence about how the case was going to go that it was kind of shocking to me. I was really surprised that they didn’t come around and try to resolve the case in a serious way.

Kimball Jones:
I just had a really big case last year and catastrophic injuries, and it was obvious the case was going to go really well for us. And they were begging to talk and settle, which is what I wanted. Right. I didn’t want my client to keep going through all of this. I wanted to resolve it for her. I’m not— the goal isn’t to get the big verdict. The goal is to get the right outcome for the client. And so we like resolved the case, right? And I really was surprised that didn’t happen here.

Kimball Jones:
But USA dug in their heels and they just absolutely were not willing to be reasonable at any level. It was bizarre.

Bert Martinez:
For whatever reason, this case must have just bothered USAA. You know what I’m saying? You know how some cases fall through their cracks? This one’s like, nope, this is, this is the line. We’re, we’re digging our heels on the— in this particular case, I don’t care what happens. Um, that’s so absurd. That is so wild.

Josh Barrett:
For me, the most shocking thing, it wasn’t at trial, but it was them paying the full policy kind of unprompted, just out of the blue. We got a check in the mail one day for policy right before we were set to go to trial. For me, I’d never seen that happen before. There really wasn’t trying to figure out why are they doing this, what do they think is going to happen, and trying to be able— being able to use that to really show the jury what was actually happening behind the scenes. That, that was the most shocking part for me.

Bert Martinez:
Yeah. No, because you’re right, because I think Somebody’s going to send you a $250,000 check. I’m sure you get an email or a phone call saying, hey, we’re going to send you this out of the goodness of our heart. We’re going to send you this check.

Josh Barrett:
And then as I talk through that, the most shocking part is they’re closing. So the way the jury has to fill out the verdict form, the first page is where they have to value the damage from the crash. We’ve already told them the driver is not going to have to pay this money. USAA is not going to pay this money. And USA then gets up and says, you should put a zero on this page. You should tell— you should tell Tim that you don’t think he was injured in the crash.

Kimball Jones:
Wow.

Josh Barrett:
That was pretty shocking.

Bert Martinez:
Yeah, that’s pretty ballsy.

Kimball Jones:
That was wild. Yeah.

Bert Martinez:
Because you, at this point, as you said, this is closing. At this point, medical evidence has been shared, right? You have some kind of crash reconstructions that’s been shared. So the jury knows, How the accident happened. They know all about the injuries. And then you have somebody with some humongous balls say, put a big zero.

Josh Barrett:
After they’ve paid their full policy and the excess policy has also paid their full policy, they’re then saying he’s not injured.

Bert Martinez:
Wow.

Josh Barrett:
Say he’s not injured.

Bert Martinez:
Now, did the jury know that the policy and the excess policy have been paid?

Josh Barrett:
Yes.

Kimball Jones:
Yeah.

Bert Martinez:
Wow.

Kimball Jones:
Yeah.

Bert Martinez:
That is some balls. That is

Kimball Jones:
wild. Yeah. I mean, it’s just a very, very poor calculation because, because the only time in trial where we get to go last as on the plaintiff’s side is we get a very short rebuttal close after the defense close. So when they did that, I then got to stand up and I said, I said, why would they do this? Why? Like, they don’t have to pay it. There’s no harm to them. They don’t want Tim to even be validated for what he has gone through in the crash itself. They despise him this much because he comes here and demands that his rights be acknowledged.

Bert Martinez:
Right.

Kimball Jones:
That they want to— they don’t want you to validate him. They want you to act like what happened to him doesn’t matter, that it’s a zero. I mean—

Bert Martinez:
That’s crazy.

Kimball Jones:
Yeah, there’s not much better you can say to a jury

Bert Martinez:
Right.

Kimball Jones:
After a trial like this where everything has gone your way, you’ve crushed them, every witness. And then for them to do that, oof, that was rough. And you could see like the jury, like after that happened, and then like I pointed out what that, the only thing that could realistically mean, um, they weren’t okay with that.

Bert Martinez:
Yeah.

Josh Barrett:
After being told 99% of the time this scheme works.

Bert Martinez:
Yeah.

Kimball Jones:
Ouch.

Bert Martinez:
Yeah. That I thought, yeah, that was brilliant the way you turned that around. So when the jury comes back with this $114 million verdict, how did you guys react? Were you guys expecting that? Were you expecting less? What were you guys expecting?

Kimball Jones:
We were. So, so the verdict, the way it breaks down is the first part comes out for the compensatory phase, which was, which was $14 million between the damage suffered in the collision and the harm caused by USAA directly. Then there’s a punitive phase, which they put an executive on to testify about how USAA is struggling so much from forest fires in California and, and that you really shouldn’t punish us because we’re trying to help the veterans and all this bullshit. And so I cross-examined that lady and she didn’t look good. It didn’t look good. It looked, it looked as inappropriate as it was, right? So then we just do additional closing arguments. Ours was very short, right? We do a closing argument 5 minutes on the punitive damages. The defense does theirs, we do a quick rebuttal, and then they go and deliberate again.

Kimball Jones:
So like between verdict 1 and them going to deliberations again, it’s like a half hour, right? So they go and deliberate again. They come back with a $100 million punitive verdict. So with respect to the verdict that they came back with, the, the $14 million initially, $7 million against USAA, it was right about what we expected. We expected it to be about like that. The verdict of the $100 million, it was also right there. It wouldn’t have shocked us if it had been $50 million. Honestly, it wouldn’t have shocked us if it had been even more. $150, $500 million even, just because of how egregious the behavior was and the amount of money that USAA was making through this system of cheating people.

Kimball Jones:
So ultimately, I’m very conservative. If you had asked me to like guess what it would’ve been or to bet on it, I might’ve said $50 million or something in punitive damages. I would’ve been surprised by anything less. And $100 million was not surprising, but I was very grateful for the, for the, for the recognition of how bad this was. Right. Because this isn’t— once you get to the $100 million, it’s not about Tim’s injuries. Right. That’s not what it’s about.

Bert Martinez:
Right.

Kimball Jones:
It’s about a system of cheating people where Tim happened to be the victim this time. But it was anybody any other time. It’s the next person that comes along because this system is in place. Right. And for them to acknowledge this is a bad deal and USA needs to be punished for it. Um, I thought that was, you know, I was— we were happy, very grateful. So

Josh Barrett:
yeah.

Kimball Jones:
Yeah.

Bert Martinez:
Do you have some—

Josh Barrett:
no, I was just saying we were, we were very, very happy with, with where it came out. We, we spent a lot of time kind of workshopping how to do it and what we expected and just kind of the vindication after all those years of them just burying their head in the sand and saying, no, not, not only are you guys wrong, you’re totally unreasonable.

Bert Martinez:
Right.

Josh Barrett:
to the point where we’re not even going to engage with you. It’s pretty, pretty crazy.

Bert Martinez:
That is wild. And again, the case is on appeal. So there, USAA is appealing on what grounds?

Kimball Jones:
You know, on a variety of things, none of them very good. The— they, they say that one of the jurors in the case because her daughter previously had a claim with USAA that she had not been happy about, like, I don’t know, a decade ago. Um, and, and that even though she was never asked about it, they, they went back through their files and found where she had one, like, negative conversation with an adjuster, like, a decade ago or something. And they said, well, she must have been biased or something. I mean, it was, it’s like absurd. It’s just kind of a stupid argument. Right.

Bert Martinez:
Right.

Kimball Jones:
Um, and there’s no law that would say you kick someone off for that anyway. But in this case, they didn’t even ask any of the relevant questions to know. So anyway, that, that’s pretty weak. They say that I was, um, too aggressive beating up on, on some of their people in the, in the case.

Bert Martinez:
Is that grounds for reversal?

Kimball Jones:
Not a good one. Not, not a good one.

Josh Barrett:
They argue that it’s passion and prejudice inflaming the jury.

Bert Martinez:
Uh, I object, Your Honor. Their attorneys are too good.

Kimball Jones:
I mean, really, like, that’s kind of like they, they did seem to feel like we were, we were really, uh, really tough on their witnesses by, you know, by catching them lies. Yeah. And, uh, and their witnesses not being prepared.

Bert Martinez:
Gentlemen, thank you so much for stopping by. This has been a blast. I, I, uh, I hope that, uh, you guys get, get something out of this and, and If you’re having any problems with your insurance, you know that you can contact the guys at Bighorn Law and maybe get some help there. They’ll point you in the right direction. And I can’t wait to have you guys back and talk about your next case and see where we go from there.

Kimball Jones:
Awesome. Thanks.

Josh Barrett:
Pleasure. Thanks for having us.

Kimball Jones:
Appreciate you having us.

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