General Information and Practice Pointers

 

Colossus


 

Wisconsin Academy of Trial Lawyers Association
By Christine A. Bremer and Lance Trollop

 


This article should be a 50-page document discussing exactly what the COLOSSUS software is and does. Unfortunately, outside of the insurance companies who use it and the software developers who created it, little is known about the program. What this article will do instead is provide the information we do know about COLOSSUS. It will also attempt to set forth some practice pointers for plaintiffs’ attorneys faced with an insurance company relying on a COLOSSUS evaluation.

 

What Colossus Is and What It Does

 

The program is widely used in the insurance industry for claims evaluation. COLOSSUS was developed in Australia over a decade ago. An American company, Computer Sciences Corp. (CSC), purchased the software and the company that developed it in 1991. CSC describes the program as:

 

a comprehensive knowledge-based system used by the insurance industry. With its

repository of insurance and medical expertise, the system assists the human

decision-making process in assessing bodily injury claims by asking a series of

detailed questions that guide adjusters through injury evaluation consultations.

COLOSSUS bases conclusions upon the severity of actual injuries and provides

claims professionals with a valuation range for each claim. COLOSSUS is a

powerful tool for improving claims valuation consistency, adjuster productivity,

and cost containment effectiveness.1

 

CSC also states that the program “can explain trauma-related medical terms, provide basic anatomy and physiology descriptions of the human body, highlight inadequate evidence of a claim, and warn of any exaggeration or inconsistencies — particularly in spinal soft-tissue injuries.”2

 

Essentially, the program is a database that evaluates claims based on information entered by an adjuster. This information includes details about damages, medical expenses, wage loss, use of safety equipment, liability, etc.3 With “a series of interactive questions, COLOSSUS guides adjusters in evaluating the level of pain and suffering, the effect the injury has had in terms of permanent impairment to the body, and the impact on the claimant’s lifestyle” and it then provides a summary of the claim and a recommended settlement range.4  In order to consider regional differences in claim values, the program also relies on geographical data.5 Although Allstate denies the allegations, it has been reported that Allstate employees also use COLOSSUS to record information about specific attorneys, such as how they negotiated, their attempts to settle, the size of the firm’s income and the number of paralegals it employs.6

 

The use of COLOSSUS in the insurance industry is extensive. Thirty-four insurers, representing 60% of the automobile insurance market, use the program.7  Over 18,000 insurance adjusters use the product.8 The following, although not a definitive list, are insurance companies known to license COLOSSUS:

 

Aetna (see Travelers);

• Allstate, 1997;

• American National Property & Casualty, since January 1997 in 38 states;

• American Family Group of Madison, Wis., since November 1996;

• Arrow Claims Management, an affiliate of Arrowhead General Insurance Agency, since August 1997;

• Bishopsgate Insurance, since April 2000;

• Explorer Insurance Company, Burbank California, since December 1997;

• Federated Mutual Insurance Company, Owatonna, Minnesota, since April 1998;

• General Casualty Insurance Companies (Winterthur Swiss Insurance Group), since July 1998;

• Grange Mutual Casualty Companies, Columbus, Ohio, since December 1998;

• Great American Insurance Company (American Financial Group, Inc., Cincinnati, Ohio), since March 1998;

Hartford Financial Services, since May 2000;

• Keystone Insurance Companies of Philadelphia;

• Metropolitan Group, Rhode Island;

Norwich Union (UK);

• Motorists Mutual-American Hardware Insurance Group, Columbus, Ohio, since December 1998;

• Ohio Casualty Group of Insurance Companies, since January 1998;

• State Auto Insurance Companies of Columbus, Ohio, since September 1996;

• 20th Century Industries, since February 1997;

• Travelers/Aetna Property Casualty, since September 1996;

• United Services Automobile Association (USAA), since February 1997;

• Zurich Personal Insurance (Maryland Casualty Company also underwrites through Assurance Company of America, Northern Insurance Company of New York, Valiant Insurance Company, Maryland Insurance Company, Maine Bonding and Casualty Company, National Standard Insurance Company and Maryland Lloyds), since June 1998.9

 

Clearly, the main reason so many insurance companies are making use of COLOSSUS is due to increased profits. Also, the developers of the program and the insurance industry using it claim that COLOSSUS removes bias from claims evaluations and produces a fair result.

 

Bad Faith

Many are questioning the use of COLOSSUS and the program has occasionally been addressed in bad faith claims against insurance companies. Allstate seems to be the most commonly accused company for COLOSSUS–related bad faith. Perhaps this is because many companies only use the program as a guide, but Allstate uses the recommendations more as a final rule.10 Allstate adjusters input data, a COLOSSUS report is generated, an “Evaluation Consultant” (who is more trained on the program) reviews the report and then an offer is made.11 Allstate updates the program yearly with the use of settlement results, rather than verdicts, to compute claim values.12 Adjusters are under pressure to settle claims within the range provided by COLOSSUS and their claims managers can compare the results of the claim to the program’s estimate.13 Not only can the program be too restrictive when used as a rule, it also can be misused. In fact, “Virginia regulators accused Allstate of consistently ignoring COLOSSUS calculations, or manipulating the figures used to make such calculations in order to produce inordinately low settlement offers.”14

 

Nationwide, there is very little case law concerning COLOSSUS. Attempted discovery of COLOSSUS information has been difficult. CSC often files a Motion to Intervene to protect intellectual properties of the COLOSSUS software.15 In other instances, companies like Allstate claim their contract includes an obligation to keep information about COLOSSUS, including manuals, forms and training materials, confidential.16 Even though the end result of the program is a printed document, this information is rarely produced through discovery requests. However, the document has been produced in instances where a confidentiality agreement was signed.17 Other cases that have referred to COLOSSUS typically involved bad faith claims.18

 

Dealing With Colossus

The results of the COLOSSUS program are completely dependent upon the information entered by the adjuster. Because of this, the plaintiff’s attorney must provide very detailed information. One of the most important things to realize is that only actual medical records or reports are used. Allegations made by the plaintiff, such as those often found in a demand letter, are not entered into the program unless the medical records or reports support them. The adjuster will be asked to enter the length and type of treatment, the amount of medical bills and the medical provider, so detailed accounts of this information should be provided. Additionally, COLOSSUS breaks down the treatment between initial, subsequent and future, so the adjuster should be provided with detailed information supporting each.19 And, once again, all information about injuries, treatment and prognosis (including complaints of anxiety, depression, pain, etc.) must be supported directly by medical records.

 

Asking the adjuster specifically what the COLOSSUS range of settlement or recommended offer is may also be helpful. The adjuster may feel tied to a low COLOSSUS value that could be due to wrongly entered information. If this seems to be the case, ask the adjuster what specific injuries were used since some may have been missed. The program also needs to know the specific time line for treatment, supported by medical records. Also, the type of treatment must be very detailed. For example, COLOSSUS distinguishes between cortisone injections, epidurals and nerve blocks.20 Additionally, be certain permanency and lost wages were included. Aggravations of pre-existing conditions increase the value of the claim, so those must also be considered.

 

Practice Pointers

 

The following is a list of issues to consider and items of information to provide to an adjuster relying on COLOSSUS.

1)     Liability – use of a seatbelt increases value, as does absence of intoxication

2)     Chiropractor – referral from a regular doctor, in the records, increases value

3)     Spine Treatment – must be documented specifically as to injury and why treatment is related to injury

4)     Medical Aids – medically documented needs for aids like walkers or crutches and time needed are considered by the program

5)     Neck Collars – different types of neck collars are treated differently

6)     Treatment Gaps – delays in treatment decrease value so provide explanations for any, preferably documented in the medical records

7)      Permanency – COLOSSUS uses 4th Edition of the AMA Guidelines to Permanency and uses ratings only to body as a whole

8)      Loss of Enjoyment of Life – can be considered if documented in medical records or reports

9)      Future Medical Bills and Wage Loss – documentation from treating doctor needed for each to be considered

10)    Complaints – all complaints should be documented by medical records

11)    Pre-existing Condition – aggravation of it should be documented

12)    Aggravation – degree of aggravation and permanency should be documented

13)    Hospital – exact days of hospital stay and bed rest should be noted

14)    Treatment – duration of treatment and any permanent use should be documented

15)    Pain, Depression, Anxiety – must be documented in medical records/reports

 

Conclusion

Considering the number of adjusters and insurance companies making use of COLOSSUS, it seems impossible to avoid and it isn’t going away any time soon.  In fact, CSC announced in 1998 that it was working with Mitchell International on a way to combine COLOSSUS with Mitchell’s software, which processes medical claims, so that all medical information can be automatically consolidated in the program.21 So, not only is COLOSSUS not going away, its use is expanding.  However, as time goes on, more and more information is learned about the program. Hopefully, the information in this article and in those cited will help you in your battles with COLOSSUS.

 

 

Christine A. Bremer is a shareholder in the Wausau law firm of Grischke & Bremer, LLSC. She received her undergraduate degree from Loyola University School of Law in 1978. She is a sustaining member of the Wisconsin Academy of Trial Lawyers and serves on its Board of Directors and serves as a co-editor of The Verdict. In addition, she is a member of the State Bar of Wisconsin, the Marathon County Bar Association, the American Bar Association and a sustaining member of the Association of Trial Lawyers of America.

 

Lance R. Trollop is a 2001 cum laude graduate of the University of Wisconsin Law School. Attorney Trollop joined Grischke & Bremer following graduation. He is a member of the State Bar of Wisconsin, American Bar Association, American Bar Association – Young Lawyers Division, Association of Trial Lawyers of America and Wisconsin Academy of Trial Lawyers.

 

 

Endnotes:

1    COLOSSUS (visited Dec. 5, 2001)  (<http://www.csc-fs.com/system/search_product_view.asp?MarketFocusID=1&ProductID=224>.

2    Financial Services (visited Dec. 5, 2001) (<http://www.csc-fsg.com/colossus/index.html>.)

3    See Roselyn Bonanti and David Ratcliff, COLOSSUS: What It Is and How Insurance Firms Misuse It, Consumer Attorneys of California Forum, July/August 2001, at 10.

4    Tony Attrino, Software Helps Bolster Claims Assessment, National Underwriter, May 4, 1998.

5    See Bonanti, supra note 3, at 10.

6    Id.

7    See Financial Services (visited Dec. 5, 2001)  (<http://www.csc-fs.com/NEWS/CC4Qaccom.asp>.

8    See Attrino, supra note 4.

9    Bonanti, supra note 3 at 11.

10  See William F. Merlin and Mary Kestenbaum, What Is Colossus and How to Combat It, The Arkansas Trial Lawyers Association Docket Winter 2001; reprinted in The Verdict, Vol. 24:2; Spring, 2001.

11   Id.

12   Id.

13   See William F. Merlin, Colossus: What We Know Today (visited Dec. 5, 2001)  (<http://www.atla.org/cle_con/all99/merlin.ht>.)

14   Bonanti, supra note 3 at 10.

15   See Merlin, supra note 10.

16   See Tastad v. Allstate Ins. Co., 1997 Wash. App. LEXIS 1202 (July 28, 1997).

17   See Robertson v. Allstate Ins. Co., 1999 U.S. Dist. LEXIS 2991 (E.D. Pa. March 10, 1999).

18   See e.g., Penberthy v. Caprett, 2001 App. LEXIS 247 (Jan. 25, 2001) (the COLOSSUS evaluations did not consider PTSD and post-concussion syndrome); Mirville v. Allstate Indemnity Co., 87 F. Supp. 2d 1184 (D.Kan. 2000) (the court denied a bad faith claim);  Benton v. Allstate Ins. Co., 2001 U.S. Dist. LEXIS 9448 (Feb. 26, 2001) (the court noted Benton did not fully develop a theory of what COLOSSUS is and how its use was bad faith).

19  See Merlin, supra note 13.

20  See Merlin, supra note 10.

21  See Bonanti, supra note 3 at 10.

 

 

Wisconsin Academy of Trial Lawyers Association

 

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