Bad Faith Claims

1. Bad Faith Claims James P. Nader Lobman, Carnahan, Batt, Angelle, & Nader Attorneys At Law 400 Poydras Street, Suite 2300 New Orleans, LA 70130-3425 Telephone (504) 586-9292 Facsmile(504) 586-1290 Email: jpn@lcba-law.com www.lcba-law.com

3. Reasons for Bad Faith Laws • Contractual reason: • Implied C0venant of Good Faith and Fair Dealing • Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. Restatement (Second) of Contracts § 205 (1981) • The implied duty of good faith and fair dealing in every insurance policy fundamentally requires that the insurer to do nothing to injure the insured’s right to receive benefits due under its policy. Richmond, Advice of Counsel and Insurance Bad Faith, 73 Miss. L.J. 95 (Fall 2003).

4. Reason for Bad Faith Laws cont. • Public Policy reason: • Superior Bargaining Power of Insurers • Factors showing superior bargaining • This makes insurance contracts particularly susceptible to public policy considerations. Standards for Limiting the Tort of Bad Faith Breach of Contract, 16 U.S.F.L. Rev. 187 (1982). • This public policy extends damages for Bad Faith beyond mere contractual damages and into the realm of tort damages. Hunter v. Up-Right, Inc., P 2d 88 (Cal. 1993).

5. Definition of “Bad Faith” • The phrase “bad faith” is one of the most often repeated phrases in the law, but may also be one of the least understood. • “Bad faith” may connote moral culpability or fault, but it is unclear from cases or commentary to what degree bad faith actually indicates some evil intent or moral failing.

6. Common Elements of Bad Faith 1. Wrongful failure to pay a claim or undisputed amount 2. Failure to investigate or investigate timely 3. Failure to defend vs. indemnify 4. Failure to promptly adjust the claim per legal timeline

7. Florida History: • Florida has recognized third-party bad faith actions at common law since 1938 • First-party bad faith actions were recognized with the enactment of F.S.A.§ 624.155 in 1982 • Now, first-party and third-party bad faith claims fall under the same statutes and contain the same causes of action.

8. F.S.A.§ 624.155 624.155  Civil remedy (Chapter 625 of Insurance Code)— (1)  Any person may bring a civil action against an insurer when such person is damaged: (a)  By a violation of any of the following provisions by the insurer: 1.  Section 626.9541(1)(i), (o), or (x); 2.  Section 626.9551; 3.  Section 626.9705; 4.  Section 626.9706; 5.  Section 626.9707; or 6.  Section 627.7283. (b)  By the commission of any of the followingacts by the insurer: 1.  Not attempting in good faith to settle claims when, under all the circumstances, itcould and should have doneso, haditactedfairly and honestlytowarditsinsured and with due regard for her or hisinterests; 2.  Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverageunderwhichpayments are being made; or 3.  Except as to liabilitycoverages, failing to promptlysettle claims, when the obligation to settle a claim has becomereasonablyclear, under one portion of the insurancepolicycoveragein order to influence settlementsunderother portions of the insurancepolicycoverage. Notwithstanding the provisions of the above to the contrary, a personpursuing a remedyunderthis section need not provethatsuchactwascommitted or performedwithsuchfrequency as to indicate a general business practice. …. (4) Upon adverse adjudication at trial or upon appeal, the authorized insurer shall be liable for damages, together with court costs and reasonable attorney's feesincurred by the plaintiff.

9. Florida law – what to know • In Florida, the duty of an insurer is described as the “duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980). • This is a “fiduciary relationship” b/w the insurer and insured, placing the insured with a high burden. Allstate Indem. Co. v. Ruiz, 899 So. 2d 1121, 1125 (Fla. 2005). • 624.155 provides that an insured cannot bring a bad faith claim if, “within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.” Such written notice is required of any party attempting to bring a bad faith claim against an insured. F.S.A.§ 624.155. • After a debate on whether the insured must pay the claim amount or the claim amount plus bad faith damages within this time period, the Florida Supreme Court held, in Talat Enterprises, Inc. v. Aetna Cas. And Sur. Co., that the 60 day period, if complied with, precludes any recovery for bad faith damages. 753 So. 2d 1278 (La. 2000). • Attack on law in Florida in that there is no reciprocal duty of good faith on part of the insured/claimant, resulting in a “bad faith set-up.” Baton v. Transamerica Ins. Co., 584 F. 2d 907, 914 (9th Cir. 1978)); Peraza v. Robles, 983 So. 2d 1189, 1192 (Fla. 3d D.C.A. 2008)

11. Georgia • Current elements to show bad faith: • The claim is covered under the policy; • Demand for payment made within 60 days prior to filing suit; and • Insurer’s failure to pay motivated by bad faith. LavoiCorp., Inc. v. Nat'l Fire Ins. of Hartford, 666 S.E.2d 387 (Ga. App. 2008) • As occurs on national level, Georgia does not adequately define “bad faith.” • Georgia bad faith law tends toward the vague and broad, as opposed to other state’s detailed laws

12. Ga. Code. Ann. § 33-4-6 § 33-4-6. Liability of insurer for damages and attorney's fees on bad faith refusal to pay claims (a) In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $ 5,000.00, whichever is greater, and all reasonable attorney's fees for the prosecution of the action against the insurer. The action for bad faith shall not be abated by payment after the 60 day period nor shall the testimony or opinion of an expert witness be the sole basis for a summary judgment or directed verdict on the issue of bad faith. The amount of any reasonable attorney's fees shall be determined by the trial jury and shall be included in any judgment which is rendered in the action; provided, however, the attorney's fees shall be fixed on the basis of competent expert evidence as to the reasonable value of the services based on the time spent and legal and factual issues involved in accordance with prevailing fees in the locality where the action is pending; provided, further, the trial court shall have the discretion, if it finds the jury verdict fixing attorney's fees to be greatly excessive or inadequate, to review and amend the portion of the verdict fixing attorney's fees without the necessity of disapproving the entire verdict. The limitations contained in this Code section in reference to the amount of attorney's fees are not controlling as to the fees which may be agreed upon by the plaintiff and the plaintiff's attorney for the services of the attorney in the action against the insurer. (b) In any action brought pursuant to subsection (a) of this Code section, and within 20 days of bringing such action, the plaintiff shall, in addition to service of process in accordance with Code Section 9-11-4, mail to the Commissioner of Insurance and the consumers' insurance advocate a copy of the demand and complaint by first-class mail. Failure to comply with this subsection may be cured by delivering same.

13. Georgia law – what to know • Need a “reasonable and probable cause for defending the claim” Colonial Life & Acc. Ins. Co. v. Donaldson, 322 S.E. 2d 510 (Ga. App. 1984) • Where no evidence of bad faith or where issue of liability is close, court should not allow imposition of bad faith penalties Mitchell v. Globe Life and Acc. Ins. Co., 548 F. Supp.2d 1385 (N.D. Ga. 2007) • More detailed statute in respect to bad faith refusal to pay motor vehicle coverage claims. Ga. Code Ann., § 33-4-7. • Safe harbor in Georgia for situation where Plaintiff makes a settlement offer containing a condition beyond control of insurer. Cotton States Mut. Ins. Co. v. Brightman, 580 S.E.2d 519 (Ga. 2003) • Insurance adjusters are not liable for failure to settle a claim with an insured in the absence of a contractual relationship. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (Ga. App. 1980).

14. Louisiana Bad Faith Law Elements of insured’s claim of bad faith: 1. That the insurer received a satisfactory proof of loss; 2. That the insurer failed to pay the claim within the applicable period;AND 3. That the insurer’s failure to pay was arbitrary, capricious, or without probable cause. Boudreaux v. State Farm Mut. Auto. Ins. Co., 896 So. 2d 230 (La. App. 4 Cir. 2005) Insurer’s defenses: • Underlying claim invalid (e.g. prescribed) Hampton v. Audubon Ins. Co., 948 So. 2d 332 (La. App. 2d Cir. 2007) • Refusal to pay has reasonable basis Kottle v. Provident Life and Acc. Ins. Co., 775 So. 2d 64 (La. App. 2 Cir. 2000), writ denied 790 So.2d 635 (La. 2001) • No satisfactory proof of loss Reed v. State Farm Mut. Auto. Ins. Co., 857 So. 2d 1012, 1021 (La. 2003) • Insured withholds necessary information Boudreaux v. State Farm Mut. Auto. Ins. Co., 896 So. 2d 230, 234 (La. App. 4 Cir. 2005)

16. La. R.S. 22:1892 La. R.S. 22:1892 (formerly 22:658): Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; extension of time to respond to claims during emergency or disaster; penalties; arson-related claims suspension A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph. (2) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, R.S. 22:1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant. (3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant except that the commissioner may promulgate a rule for extending the time period for initiating a loss adjustment for damages arising from a presidentially declared emergency or disaster or a gubernatorially declared emergency or disaster up to an additional thirty days. Thereafter, only one additional extension of the period of time for initiating a loss adjustment may be allowed and must be approved by the Senate Committee on Insurance and the House Committee on Insurance, voting separately. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1973. (4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim. B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

17. La. R.S. 22:1973 La. R.S. 22:1973 (formerly 22:1220): Good faith duty; claims settlement practices; cause of action; penalties A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach. B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer's duties imposed in Subsection A: (1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue. (2) Failing to pay a settlement within thirty days after an agreement is reduced to writing. (3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured. (4) Misleading a claimant as to the applicable prescriptive period. (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause. (6) Failing to pay claims pursuant to R.S. 22:1893 when such failure is arbitrary, capricious, or without probable cause. C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings. D. The provisions of this Section shall not be applicable to claims made under health and accident insurance policies. E. Repealed by Acts 1997, No. 949, § 2. F. The Insurance Guaranty Association Fund, as provided in R.S. 22:2051 et seq., shall not be liable for any special damages awarded under the provisions of this Section.

18. Proving Elements of Claim • Satisfactory proof of loss: • Defined as information which suffices to fully apprise insurer of claim Jones v. Johnson, 56 So. 3d 1016 (La. App. 2 Cir. 2010) • McDill tender McDill v. Utica Mutual Ins. Co., 475 So.2d 1085, 1089 (La. 1985) • Necessary to show that insurer acted “arbitrary and capricious” Arceneaux v. Amstar Corp., 969 So.2d 755 (La. App. 4 Cir. 2007) • Arbitrary, capricious, or without probable cause • Often used as shorthand for “bad faith” Vaughn v. Franklin, 785 So.2d 79, 85 (La. App. 1 Cir. 2001), writ denied 798 So. 2d 969 (La. 10/5/01) • However, this phrase really implies an abuse of power and doesn’t necessarily imply contemptuous behavior Steadman v. Pearl Assurance Co., 167 So. 2d 527, 531 (La. App. 4 Cir. 1964), writ denied, 168 So. 2d 822 (La. 1964). • Many courts describe this phrase as a “vexatious” and unjustified refusal to pay Louisiana Bag Co., Inc. v. Audubon Indem. Co., 999 So. 2d 1104 (La. 2008) • The failure to tender an “undisputed amount” within the time period required by statute is, per se, arbitrary and capricious Louisiana Bag Co., Inc. v. Audubon Indem. Co.,2008-0453 La. 12/2/08, 999 So. 2d 1104, 1114 Maloney Cinque, L.L.C. v. Pac. Ins. Co., Ltd., 2011-0787 La. App. 4 Cir. 1/25/12 (La. Ct. App. Jan. 25, 2012)

19. Louisiana First Party “Cat” Claim Flowchart

20. Progression of MS Law • Benchmark case in 1977 noted “necessity of awarding punitive damages when an insurance company refuses to pay a legitimate claim.” • Standard Life Insurance Co. v. Veal, 354 So. 2d 239 (Miss. 1977) • For punitive damages, must show: • 1. The insurer lacked an arguable or legitimate basis for denying the claim, and • 2. The insurer committed a wilful or malicious wrong, or acted with gross and reckless disregard for the insured's rights. • State Farm Mut. Auto. Ins. Co. v. Grimes, 722 So. 2d 637, 641 (Miss. 1998) • In Mississippi, an adjuster can face independent liability when his conduct constitutes gross negligence, malice, or reckless disregard for the rights of the insured. • Bass v. California Life Ins. Co., 581 So. 2d 1087, 1090 (Miss. 1991) • Prior, Mississippi had held that, as adjusters were not party to contract with insured, they were not independently liable. Griffin v. Ware, 457 So. 2d 936 (Miss. 1984)

21. Miss. Code. Ann. § 11-1-65. Punitive damages In any action in which punitive damages are sought: Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud. In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages. If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact. The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount. In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to concealsuch misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages.

22. Mississippi – what to know • Reasons for denial – insurer is limited in defense of bad faith claim to those reasons stated to the insureds when denying coverage • Sobleyv. Southern Natural Gas Co., 210 F.3 d 561(U.S. 5 Cir. 2000) rehearing denied • To avoid bad faith liability, need an “arguable reason to deny coverage” • McLendonv. Wal-Mart Stores, Inc., 521 F. Supp. 2d 561 (S.D. Miss. 2007) • Four factors to determine amount of punitive damage award against insurers: • (1) the amount should punish the insurer and deter it from engaging in similar actions in the future • (2) the amount should serve as a deterrent for others; • (3) the amount should account for the insurer's financial worth; and • (4) the amount should compensate the plaintiff for her public service in holding the insurer accountable.   • United American Ins. Co. v. Merrill,978 So. 2d 613 (Miss. 2007), rehearing denied, cert denied 128 S. Ct. 1257 (U.S. 2007)

23. North Carolina • Historically, courts not willing to provide tort remedies for breach of contract • Required “aggravation” such as fraud or malice • Current elements to show bad faith refusal to settle a claim: • Refusal to pay after recognition of valid claim; • Bad Faith; and • Aggravating or outrageous conduct. • Lovell v. Nationwide Mut. Ins. Co., 424 S. E.2d 181, 184 (N.C. 1993).

24. N.C.G.S.A. § 58-63-15 The following are hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: (11) Unfair Claim Settlement Practices.--Committing or performing with such frequency as to indicate a general business practice of any of the following: Provided, however, that no violation of this subsection shall of itself create any cause of action in favor of any person other than the Commissioner: a. Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; b. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies; c. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; d. Refusing to pay claims without conducting a reasonable investigation based upon all available information; e. Failing to affirm or deny coverage of claims within a reasonable time after proof-of-loss statements have been completed; f. Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; g. Compelling the insured to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insured; h. Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled; i. Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured; j. Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made; k. Making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; l. Delaying the investigation or payment of claims by requiring an insured claimant, or the physician, of or either,1 to submit a preliminary claim report and then requiring the subsequent submission of formal proof-of-loss forms, both of which submissions contain substantially the same information; m. Failing to promptly settle claims where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; and n. Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.

25. Private Right of Action • Private right of action for bad faith insurance claim found in N.C.G.S.A. § 75-1.1 • This statute requires“unfair or deceptive trade practices,” generally, not just in insurance aspect • N.C.G.S. § 75-1.1 broader than Chapter 58 (N.C.G.S.A. § 58-63-15) • Adjusters can be sued personally • No need to show frequency – general business practice Gray v. North Carolina Ins. Underwriting Ass’n, 529 S.E. 2d 676 (N.C. 2000)

26. Texas Bad Faith • Texas Supreme Court first recognized independent tort of bad faith by first-party insureds in 1987 Arnold v. National County Mut. Ins. Co., 725 S.W.2d 165 (Tex. 1987) • Insured required to show the absence of a reasonable basis for denying or delaying payment. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex. 1988) • Now, standard is whether insurer knew/should have known that it was “reasonably clear” that claim covered Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55-56 (Tex. 1997) • Texas is one of very few states that bifurcate bad faith cases from its underlying breach of contract case Viles v. Security Nat'l Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990)

27. Tex. Ins. Code Ann. § 541.001 et seq § 542.003. Unfair Claim Settlement Practices Prohibited • An insurer engaging in business in this state may not engage in an unfair claim settlement practice. • Any of the following acts by an insurer constitutes unfair claim settlement practices: • knowingly misrepresenting to a claimant pertinent facts or policy provisions relating to coverage at issue; (2) failing to acknowledge with reasonable promptness pertinent communications relating to a claim arising under the insurer's policy; (3) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under the insurer's policies; (4) not attempting in good faith to effect a prompt, fair, and equitable settlement of a claim submitted in which liability has become reasonably clear; (5) compelling a policyholder to institute a suit to recover an amount due under a policy by offering substantially less than the amount ultimately recovered in a suit brought by the policyholder; (6) failing to maintain the information required by Section 542.005; or (7) committing another act the commissioner determines by rule constitutes an unfair claim settlement practice.

28. Texas – what to know • Evidence that merely shows a bona fide dispute about the insurer's liability on the contract does not rise to the level of bad faith. National Union Fire Ins. Co. v. Dominguez, 873 S.W.2d 373, 376–77 (Tex. 1994) • Nor is bad faith established if the evidence shows the insurer was merely incorrect about the factual basis for its denial of the claim, or about the proper construction of the policy. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 18 (Tex. 1994) • Texas does seem to require a culpability akin to traditional bad faith. Jones v. Ross, 173 S.W.2d 1022 (1943) • A claims adjuster responsible forthe servicing of insurance policies can be held liable under the Texas Insurance Code for alleged Unfair and Deceptive Trade Practices. Gaschv. Hartford Accident & Indemnity Co., 491 F.3d 278, 282-83 (5th Cir. 2007)

31. James P. Nader Lobman, Carnahan, Batt, Angelle, & Nader Attorneys At Law  400 Poydras Street, Suite 2300 New Orleans, LA 70130-3425 Telephone (504) 586-9292 Facsmile (504) 586-1290 Email: jpn@lcba-law.com www.lcba-law.com