Recent Developments and Emerging Issues in Coverage/Bad Faith Claims

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1 Recent Developments and Emerging Issues in Coverage/Bad Faith Claims The Impact of the Current Economic/Political Climate On Bad Faith Claims By Charles T. Blair Washington, DC I. Bad faith claims are generally regarded as a lagging indicator of the times. Bad faith claims grow out of situations that begin as a dispute about something else, such as an underlying tort claim, an underlying claim for first-part benefits, etc. It takes some time for the underlying claims to mature to a point where bad faith claims are made. II. General wisdom is that tough economic times produce an increase in bad faith claims. The belief is that when insureds (and their lawyers) are under economic pressure, they are increasingly likely to be more aggressive in threatening insurers with bad faith and in filing such claims to obtain the maximum possible leverage. Anecdotal evidence suggests this is happening now. But the full impact of current conditions on bad faith claims will not be known for some time. III. There is one aspect of bad faith law that is more immediately responsive to the current political climate bad faith statutes. A. Historically, bad faith law has been intensely state specific. And most of the important law has been judge-made by state courts, rather than being made by legislatures and statutory enactments. B. But bad faith statutory remedies have played important roles in some states. C. And in recent years, there has been a decided trend toward the passage of significant bad faith statutes. The recent legislation has generally shared the common feature of being unfriendly to insurers. These statutes have expanded the types of damages and penalties that can be recovered against insurers for their claims handling. And in many cases these statutes have made it easier to recover such damages by lowering the standard of proof. TROUTMAN SANDERS LLP 1

2 1. This trend has been especially pronounced in last two years since the 2006 elections. a. In 2007, the State of Washington witnessed a substantial controversy over the Insurance Fair Conduct Act. The Act allowed insureds to recover up to three times their actual damages, their attorneys fees, and their litigation costs, including expert fees. The standard for such recovery was left vague and amorphous, i.e., the insured was required to show an unreasonable denial of a claim. The statute was bitterly opposed by tort reform advocates and, after the Act was passed by the legislature and the governor, they succeeded in having the measure put on the ballot for a statewide referendum. A very costly and aggressive public campaign ensued. Ultimately, the voters approved the statute and it went into effect on December 6, b. Also in 2007, following the election of a new governor, Maryland enacted legislation providing that successful insureds in bad faith cases could recover actual damages up to the policy limits, attorneys fees, litigation costs, and statutory interest. The legislation limited attorneys fees to 1/3 of the actual damages recovered. It also set up an administrative procedure under the Maryland Insurance Administration. This legislation went into effect in October c. The legislative activity continued in Colorado enacted a statute providing remedies for the unreasonable delay or denial of benefits. It allowed an insured to recover two times the covered benefit, as well as attorneys fee and court costs. See Colo. Rev. Stat , effective August 5, d. Also in 2008, Minnesota passed legislation that was the product of substantial negotiations between insurance industry groups and the bill s proponents. The statute allowed an insured to recover attorneys fees of up to $100,000 and damages of up to $250,000 or one-half of the proceeds awarded that were in excess of an amount offered by the insurers at least ten days before trial, whichever is less. The insured was required to demonstrate that the insurer knew there was no reasonable basis for denying the claim or recklessly disregarded the lack of a reasonable basis for denying the claim. See Minn. Stat. Ann , effective August 1, TROUTMAN SANDERS LLP 2

3 2. Recent Legislative Developments a. Since last November s elections, the plaintiffs bar reportedly has been very active in state legislatures around the country. The American Tort Reform Association stated that, going into this legislative season, it believed the plaintiffs bar had the best alignment of political stars it s enjoyed in years. A large number of bad faith bills were introduced in an effort to capitalize on this situation. b. Specifically, insurance industry groups have been tracking bad faith legislation in no fewer than 14 jurisdictions, including Colorado, Connecticut, the District of Columbia, Florida, Georgia, Indiana, Iowa, Michigan, Minnesota, Montana, New Jersey, New Mexico, Oregon, and Rhode Island. c. Oregon House Bill 2791 in Oregon would allow actions against insurers to recover triple the amount of actual and consequential damages. It directs that when a plaintiff prevails in such an action, the court shall award attorneys fees. This cause of action is not limited to insureds, but extends to any person who suffers an injury or loss as a result of an insurer s unfair claim settlement practice under ORS This feature is viewed as highly significant because insurers could face suits not only by their insureds, but also by third-party claimants. In this manner, the legislation would resurrect the third-party cause of action previously adopted in California and West Virginia, but later abolished in those jurisdictions. d. Connecticut Senate Bill 763 in Connecticut would allow a cause of action by any person who suffers ascertainable loss of money or property as a result of an unfair claims violation. Similarly to the Oregon legislation, this measure would extend the cause of action not only to insureds, but also to third-party claimants. Potential recoveries would include actual damages and punitive damages. e. New Mexico House Bill 157 in New Mexico would provide a private cause of action for both insureds and third-party claimants. It permits recovery of actual damages for violation of the Unfair Practices Act -- and treble damages if the TROUTMAN SANDERS LLP 3

4 insurer willfully engaged in the unfair practice. The legislation expressly contemplates that class actions may be brought there under and requires the parties to engage in early mediation if any party requests it. The bill allows any person likely to be damaged by an unfair or deceptive trade practice to obtain an injunction against the insurer under the principles of equity and on terms the court considers reasonable. f. District of Columbia The Insurance Claims Consumer Protection Amendment Act of 2009 in the District of Columbia would require insurers who violate the statute to pay interest on unpaid claims at the prevailing prime rate plus 7% (but in no event less than 10%), as well as attorneys fees, experts fees, and costs. In addition, if it is determined that the claim was not fairly debatable, the court could award an additional penalty of up to three times the unpaid amount. Punitive damages would also be available if the insurer acted with reckless disregard for the rights of the claimant or maliciously, vexatiously, or with intent to cause financial or personal injury or harm. The legislation specifies that it is a statutory violation to refuse to pay claims within 30 days of receiving sufficient documentation of the loss where such refusal is wrong, mistaken, in error, or unreasonable, regardless of any insurer intent. A general business practice is not required to establish a violation; a single act may be sufficient. Prior to filing suit, a claimant must give notice to the insurer and provide an opportunity to cure within 20 days. g. New Jersey Senate Bill 132 in New Jersey provides for a private cause of action for violation of New Jersey s unfair claim settlement practices statute, even if the violation was not frequent enough to constitute a general business practice. It would allow damages of the amount due under the insured s policy plus incidental and consequential damages, court costs, and attorneys fees. The statute permits the recovery of punitive damages when the violation demonstrates, by clear and convincing evidence, actual malice or wanton and willful disregard of persons who foreseeably might be harmed by the insurer s acts of omissions. TROUTMAN SANDERS LLP 4

5 h. Minnesota House File No. 417 in Minnesota would add to the remedies available for breach of contract. Whenever the insurer breaches a duty to provide services or make payments, the insured would be allowed to recover (i) 12% interest on the amount due under the policy calculated from the date benefits were requested, and (ii) costs, disbursements, and reasonable attorneys fees. i. Colorado Senate Bill 103 would prohibit insurers from providing any compensation in any form to induce or encourage the decision to deny, or delay the resolution of, a claim or cancel or rescind an insurance policy. The stated intention of the bill s sponsor is not to affect any profit sharing programs. However, there is a concern that the provision may be used for fishing expeditions during discovery to gain access to compensation information. The legislation would allow the jury to be instructed that the payment of a financial incentive may be considered in its deliberations if such incentive contributed to the delay or denial of the plaintiff s claim. j. Montana House Bill 345 would amend Montana s already extensive bad faith remedies to allow recovery of expenses and attorney fees incurred by the insured or claimant in the underlying claim. This legislation is intended to counteract a decision by the Montana Supreme Court holding that attorneys fees could not be recovered because there was no statutory provision for such awards. TROUTMAN SANDERS LLP 5

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