45 – Peter Kestner – Money and Strategy with “The Janitor”
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In this Trial Lawyer Nation podcast, Michael Cowen sits down with acclaimed author, speaker, and trucking lawyer, Peter Kestner, for a conversation on going up against insurance companies. Peter’s experience is somewhat unique having started out in the insurance industry working for the second largest trucking insurer in the country, handling truck litigation claims.
Then, after going back to law school, he ran an excess program for a sister insurer under the Travelers Umbrella with 30 of the largest trucking concerns with self-insured retentions (SIR’s) where he would audit their claims files to make sure they had proper reserves. In some cases when it was a high exposure case, Peter would have to interject himself into the case to settle it or make the decision to take it to trial. He was even nicknamed “The Janitor” because he would “clean the messes up.” Not long after, he made a change to become a plaintiff’s lawyer when he decided he wanted to help people instead of defending corporations. Michael points out that Peter’s background and experience from the other side is extremely valuable since he’s been on the other side valuing and negotiating the cases and helping make the decisions.
One of the first insights Peter shines a light on is how much the insurance industry has changed over the years in that they now operate more like the banking industry where it is focused more on getting the premium dollars in to the company versus being in the business of risk management. Peter explains, those are dollars the insurance company works the hardest to bring in, as evidence by all the marketing campaigns aimed at bringing in new customers. They then can use those dollars to invest where, unlike the banking industry, there is little regulation as to what they can put in their portfolios as they are regulated at the state level. He clarifies why this is important looking back to 1991 and the advent to Colossus and Allstate, when the McKenzie company did an audit and determined that Allstate was paying too much in claims and suggested they reduce the amount of third party liability settlements in order to increase profits. The assertion of this being that if an insurer can find ways to bring the number of claim settlements down and pay less in overall claims, it would be an acceptable risk when the practice results in a rare bad faith case against the company, keeping more money overall available to invest. It’s obvious that this strategy has worked, as Peter points out that the insurers have grown substantially to where they are now Fortune 100 companies with billions in assets.
The conversation throughout the bulk of this episode focuses mainly on a deep dive insight on a few cases Peter has encountered and how insurance factored into them. One case referred to several times in this episode is a fascinating case which involved a 63-year-old retired Seal Team 6 member who was hit by an 18-wheeler on a dusty road in Nevada. The details surrounding this case are particularly interesting when you consider the two trucks involved were from the same company and Peter’s client was found to have been 8 feet over the center line and they were still able to settle the case, after 3 days of trial, for a sizable amount. Other details, which you need to hear to believe, involved conflicting positions on who caused the accident from within the company (the driver of the truck and the official position of the company) where a Facebook post helped solidify his client was not at fault.
Peter and Michael give some amazing advice to those taking on trucking cases and how to handle insurance companies including: strategies on how (and why) to separate yourself from the insurance negotiations and trial discussions; defense counsel bluffs – how to spot and call them without getting taken advantage of; how to leverage focus groups to put together the best case for your client, even if it means not entering all the client’s injuries; how 5 seconds of hard data can (and did) defeat a defense theory; and so much more. This episode concludes with a discussion around the top things Peter has seen plaintiff’s lawyers do which ends up leaving money on the table. His insider knowledge is extremely helpful when considering case strategy and the whole episode is worth listening to several times over.
Peter Kestner has extensive experience with truck accident cases, both as a private attorney and representative for trucking insurers. He is a co-founder of the law firm McEwen & Kestner. Prior to founding his law firm, Peter served for 10 years as a claims adjuster and litigation manager with one of the largest tractor trailer insurers in the U.S. Peter earned his B.S. from Skidmore College in 1989, and his J.D. from William Mitchell College of Law in 2001. Peter now uses his defense experience to represent individuals injured by the negligent acts of trucking companies. Peter has also served as personal counsel to policy holders in disputes with their insurers as well as serving as an expert witness in insurance litigation matters. He is the past-chair of AAJ’s Interstate Trucking Litigation Group, Chair of AAJ’s Bus Litigation Group, sits on the Board of Regents for the Academy of Truck Accident Attorneys, he is on the board of directors of Minnesota Association for Justice and he also holds a CPCU professional designation in insurance. He has litigated truck accident cases in 19 different states in both State and federal Court. He is also Board Certified in Truck Accident Litigation by the National Board of Trial Advocates (NBTA)
- Past Chair AAJ Trucking Litigation Group
- Chair AAJ Bus Litigation Group 2017-present
- Co-Chair, Amicus Curiae Committee, AAJ Trucking Litigation Group 2011-present.
- Minnesota Association for Justice Board of Directors 2012-present.
- Academy of Truck Accident Attorneys- Board of Regents
- Admitted to Bar, 2001, Minnesota and US District Court of Minnesota
- Appeared Pro-Hac Vice in Trucking Cases in the following jurisdictions: District of Colorado, Western District of Kentucky, Wyoming State Court, New York State Court, Iowa State Court, Illinois State Court, Wisconsin State Court, Kentucky State Court, South Carolina State Courts, District of North Carolina, Nevada State Court and North Dakota State Court, District of Utah, Texas State Courts, North Dakota State Courts, South Dakota State Courts, District of Mississippi.
- Education: Skidmore College (B.S. 1989); William Mitchel College of Law (J.D. 2001)
PUBLICATIONS AND LECTURES
- Speaker: AAJ Summer Convention, Understanding the Transport Cycle, Summer 2019
- Speaker: AAJ Jazz Fest, Negotiation Matters, Winter 2019
- Speaker: New Jersey Association for Justice, The Defense Perspective, Spring 2019
- Speaker: Stratford Webinar- Finding the Hidden Motor Carrier, Fall 2018
- Speaker: Kentucky Association for Justice- The Broker Defense, Summer 2018
- Speaker: AAJ Members Only Truck Group- Trial of a Punitive Damage Truck Case
- Speaker: New Jersey Association for Justice: Maximizing the Recovery in Truck Cases, Spring 2018
- Speaker: 2018 Winter Convention AAJ, Negotiations Matter
- Speaker: National Board of Trial Advocacy, Summer 2018) (Understanding Broker Cases
- Speaker: Academy of Truck Accident Attorneys, Summer 2018- (Understanding the Transportation Cycle
- Course Chair and Lecturer- AAJ Trucking College, Spring 2018
- Course Chair/Moderator: AAJ Annual Convention, Summer 2017, Trucking Litigation Group.
- Speaker: Ohio Association for Justice, Spring 2017- Trucking Insurance
- Speaker: Florida Justice Association Winter 2016: Hell on the Highways, Maximizing the Recovery in Trucking Cases
- Speaker: ATAA Fall 2016 “Truck Insurance 101”
- Speaker/Course Chair: 2016 AAJ Trucking College
- Speaker: “Rules in Trucking Cases” (AAJ Summer Convention 2016)
- Speaker: “Mediating the Trucking Case” (Minnesota Association for Justice May 2016
- Speaker: “Maximizing Settlement in Auto Cases” (360 Advocacy Seminar Spring 2016).
- Speaker: “Understanding the Transportation Cycle” (New Jersey Association for Justice-Boardwalk Seminar 2016)
- Speaker: “Mediating Trucking Cases” (Minnesota Association for Justice- Spring 2016).
- Co-author: “Potential Source of Recovery in Commercial Trucking Case” The Advocate, Vol. 41 #5 (Kentucky Justice Association Sept./Oct 2013)
- Author- “SIR vs Deductible” (AAJ Insurance Section Newsletter Fall 2015)
- Speaker: “Discovery In Trucking Cases” Webinar (Fall 2015)
- Speaker: “Insurance 101” (New Jersey Association for Justice Spring 2015)
- Speaker: “Insurance 101” (North Carolina Association for Justice, Spring 2015)
- Author- “Broker Liability for Negligent Selection of an Independent Contractor”, Minnesota Trial, Volume 37, No. 4 (Minnesota Association for Justice Fall 2012).
- Author- “Broker Liability for Negligent Selection of an Independent Contractor”, Interstate Trucking Litigation Group Newsletter (Fall 2012)
- Author- “The MCS-90 Endorsement: No Coverage? No Problem, Minnesota Trial (Minnesota Association for Justice Summer 2008)
- Author- “Trucking Insurance Chapter” Truck Accident Litigation, 3rd Edition, (American Bar Association 2012)
- Speaker- “Debunking the Broker Defense” Interstate Trucking Litigation Group Broker Shipper Liability Seminar, October 2013
- Speaker- “Debunking the Broker Defense” Interstate Trucking Litigation Group Broker Shipper Liability Seminar, June 2013
- Speaker- “Finding all Defendants in Wrongful Death Trucking Cases” Minnesota Association for Justice Wrongful Death Seminar, May 2013
- Speaker- “Technology in Trucking Cases” New Jersey Boardwalk Seminar, April 2013
- Speaker- “ Insurance Company Rules” 360 Advocacy Group, Trucking Litigation Seminar, May 2012
- Speaker- “ Insurance Company Rules” Kentucky Justice Association, Trucking Litigation Seminar, June 2012
- Speaker- “ Insurance Company Rules” Tennessee Justice Association, Trucking Litigation Seminar, March 2012
- Speaker- “Maximizing Your Recovery: Finding Insurance Coverage, Minnesota Association for Justice Successfully Litigating the Commercial Truck Case, November 2010
- Speaker- “Insurance Company Rules: Strategies for Maximizing Recovery- IPITLA Seminar, September 2009
- Speaker- “Defense of Trucking Cases, Why Commercial Motor Vehicle Cases are Different, May 2007