WHAT IS IT, HOW TO DEAL WITH IT, AND WHERE IS IT GOING?

Transcription

1 WHAT IS IT, HOW TO DEAL WITH IT, AND WHERE IS IT GOING? Moderator: Paul H. Leonard Policyholders view: Andrew M. Weiner Insurers view: Wallace C. Magathan, III

2 First Party Hull Claims Third Party Passenger Liability Claims vs Pilot/Owner Completed Ops and Products Liability Claims Premises Liability Effect of Aviation Liability Policy Limits: Past and Present

3 Florida 1938 origin to 1962 first application: Auto Mut. Indemnity Co. v Shaw, 184 So. 852 (Fla. 1938) Recognized concept of bad faith excess action based upon specific policy provision, but reversed jury verdict, finding no bad faith as a matter of law where insured approved claims handling. Key rationale: Liability policies had replaced indemnity policies giving insurers control of defense American Fire & Cas. Co. v Davis, 146 So.2d 615 (Fla. 1 st DCA 1962) Cites Shaw s rationale and allows bad faith action by insured for insurer s callous, stubborn, inflexible attitude in refusing to respond to offers to settle within policy limits.

4 California: Comunale v Traders & General Ins. Co., 328 P.2d 198 (Cal. 1958) Recognizes insured s bad faith claim for excess damages where insurer wrongfully refuses to defend and rejects offer of settlement within limits; ;permits assignment of that claim to third party. Florida: Thompson v Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla. 1971) Florida recognizes direct third party bad faith claim against insurer.

5 California: Royal Globe Ins. Co. v Superior Court, 592 P.2d 329 (Cal. 1979) recognized private cause of action by third parties directly against insurer for violation of unfair claims settlement statute. Florida: Boston Old Colony Ins. Co. v Gutierrez, 386 So.2d 783 (Fla. 1980) frequently cited case for third party bad faith claims in Florida. 1982: Florida Statute authorized first party bad faith claims; requires 60 days written notice and opportunity to cure. Third parties may proceed under statute or at common law.

6 California Moradi-Shalal v. Fireman s Fund Ins. Co., 758 P.2d 58 (Cal. 1988) overturned Royal Globe as misinterpretation of statute. According to 2001 Rand Institute Study, Royal Globe had resulted in sharp increases in severity and frequency of bodily injury claims in California, and after Moradi-Shalal, those claims fell back to national averages. In 1999 California enacted a statute to reinstate bad faith claims. Statute overturned by referendum in 2000.

7 West Virginia Study, Office of Insurance Commissioner, Feb Recommended elimination of Third Party bad faith claims, finding: Claimants pursuing weak claims more vigorously Insurers settling for higher amounts due to threat Parties retaining lawyers in more claims Increased insurance fraud due to insurer s quick settlements Rising premiums causing consumers to go without insurance 2006 statute eliminated private causes of action for third party bad faith, providing for administrative remedies only. W.Va. Code, section a.

8 Florida: leading jurisdiction for third party claimants Powell v. Prudential Prop. & Cas. Ins. Co., 584 So,.2d 12 (Fla. 3 rd DCA 1991) No demand required for bad faith claim. Farinas v. Fla. Farm Bureau Gen. Ins. Co., 850 So.2d 555 (Fla. 4 th DCA 2003) No safe harbor with multiple claimants. Berges v Infinity Ins. Co.,, 896 So.2d 665 (Fla. 2005) Bad faith now always a jury question. Mendez v Unitrin Direct Prop & Cas, 622 F.Supp.2d 1233 (M.D.Fla. 2007) Claimant did not respond to multiple attempts to settle; applying Berges federal judge held it was a question for the jury Levine v United Auto. Ins. Co., 2011 WL (Fla. 3d DCA 2011) Bad faith strict liability?

9 2011 Florida Legislature SB 1592/HB 1187: died in committee Would have replaced common law claims Standard: gross disregard of insured s s interests Prerequisites: A good faith detailed written demand within limits; claimant documentation of claim. Only insured could bring suit Florida Legislature g Identical bills SB1224/HB 427 have been filed Written notice required, identifying duty breached and amount demanded. Payment a complete defense; insured entitled to general release.

10 Florida Standard Jury Instruction: Failing to settle a claim when, under all circumstances, it could have and should have done so, had it acted fairly and honestly toward its insured and with due regard for his/her interests. What does it mean? What are the yardsticks? Pennsylvania standard insurer breaches duty when it denies a claim without a reasonable basis and when insurer knows or recklessly disregards the lack of a reasonable basis

11 Dodson Int l Parts v. Nat l Union, 332 S.W.3d 139 (Mo. App. 2010) Bad faith found even where policy was ambiguous Insurer relied too heavily on underlying allegations Insured recovered coverage action attorneys fees Advice of counsel defense did not defeat bad faith claim Trishan Air, Inc. v. Federal Ins. Co., 635 F.3d 422 (9 th Cir. 2011) No bad faith if no coverage owed in first instance Court required strict compliance with unambiguous warranty concerning pilot training

12 High damages, low limits, and liability clear What if late notice or coverage questions? High damages, low limits, but liability unclear What does insured say? What is basis for claim? Low limits, liability clear, but unknown damages with short time demand Potential for fraud, settle in haste? No demand, no point of contact - wait for response? Compliance with demand d conditions i Time limited, tender, release, liens, Medicare, financial affidavits, ambiguous terms No further communications i to resolve questions

13 Be mindful of where you file Provide insurer with all pro-coverage facts, even if outside of the complaint Check insurance company s prior positions Avail yourself of broader discovery permitted in bad faith situation ti (claims manuals, other policyholder claims) Consider using an expert on industry custom and practice Advice of counsel defense waives privilege

14 Do not wait for demands when liability is clear and damages clearly l exceed limits i Do not offer less than policy limits without insured s informed approval of strategy Confer with insured, especially with multiple claimants or weak liability, to develop settlement strategy and goals, obtain written agreement Consider retaining excess counsel to advise him so his consent is informed Must inform insured of personal exposure for excess, give him opportunity to contribute to any demands Consider escrowing policy proceeds with counsel Consider trial of bad faith case first: Cunningham v. Std. Gty. Ins. Co., 630 So.2d 179 (Fla. 1994). Initiate Declaratory Action for coverage issues

15 Do not make demands, do not respond to offers: they only help insurer meet obligations Do not identify points of contact so as to lower obstacles insurer faces to make offers Postpone appointment of guardians and personal representatives to create uncertainty and potential grounds for voiding releases If contacted, make policy limit demand requiring tender of check by date certain Do not inform insurer of deficiencies in response

16 Insurance policies are not ordinary contracts Insufficient incentive for insurers to pay claims in a timely manner if only remedy is contractual Unfair trade practice statutes insufficient to deter conduct

17 Is the duty of good faith a two-way way street? May plaintiff attorneys utilize misrepresentations in bad faith effort to delay insurer action? Bad Faith law constrains and punishes insurer behavior: are their any constraints on claimant s counsel s conduct?