6/11/2013. The State of Bad Faith Part I: Washington State. Introduction

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1 The State of Bad Faith Part I: Washington State Bob Meyers Sedgwick Seattle Eliot Harris Sedgwick Seattle Introduction Roadmap Overview of WA insurance bad faith law Recent developments Mitigating risks: claim handling Defending bad faith cases Questions Why care? Materially exposure Expensive to address Avoidable 1

2 Key Authorities Washington Administrative Code ( WAC ) Common law Consumer C Protection ti Act ( CPA ) Insurance Fair Conduct Act ( IFCA ) Interrelated WAC / Policy IFCA Common Law CPA Common Law Good faith = duty to consider insured s interests equally Evidence of bad faith Violation of WAC Breach of insurance policy Breach + unreasonable, frivolous, or unfounded = actionable CL bad faith Damages and remedies Presumption of harm? Tort damages Coverage by estoppel? Reasonable attorney fees not recoverable Consumer Protection Act Prohibits unfair or deceptive acts or practices in trade or commerce Prima facie case: Unfair or deceptive act Unreasonable denial In trade or commerce Unreasonable WAC violation Impacts public interest Bad faith Proximately caused Injury to business or property Remedies Reasonable attorney fees Treble damages (up to $25k) 2

3 Insurance Fair Conduct Act Key provisions No major binding interpretive authorities What is actionable? Most: Unreasonable denial required WAC violation actionable? Who is a first-party claimant? Insureds with liability insurance? Creditors? Subrogees? Assignees? What is a denial of pymt of benefits? Lowball offer? Must WAC violation be unreasonable? Must demonstrate actual damages Remedies Reasonable attorney fees Treble damages (uncapped) A first-party claimant who has been unreasonably denied a claim for coverage or payment of benefits may bring an action to recover actual damages, attorney fees, and costs. Court may award treble damages for unreasonable denial or a WAC violation. Court shall award reasonable attorney fees and costs for unreasonable denial or a WAC violation. Claimant may only bring an action if it has given 20 days notice and the insurer has not resolved the basis for the action. Example Insured rear ended by an uninsured motorist who was 100% at fault Insured s alleged damages: $85k in medical expenses Emotional distress, general damages $65k in lost wages (disputed) $10k in P.D. Insured demanded $100k UIM limit Insurer sent a check for $60k Insured sued What causes of action are potentially viable? A. Common law bad faith B. CPA C. IFCA D. A and B E. All of the above What remedies are potentially available in the suit? A. Reasonable attorney fees B. Treble damages C. Coverage by estoppel D. A and B E. All of the above Discovery Presumption that 1st-party insurer may not assert atty-client privilege or work product protection in a bad faith suit First-party insurance Prevents insurers from obstructing discovery Presumption is rebuttable Not engaged in quasi-fiduciary tasks Counseling insurer re: its own potential liability Rebut in camera review, redaction Unresolved issues: Quasi-fiduciary vs. counseling Third-party insurance? Federal court? 3

4 Summary Substantial body of law Interrelated The courts provide insureds with wide latitude in discovery Harsh remedies The courts often apply the law and remedies liberally Avoid WA bad faith law? Consider choice-of-law issues early Insured or claim outside of WA? Which state has most significant relationship to the claim handling? Develop contacts with other state Send letters to insured at non-wa addresses Send letters to insured from non- WA addresses Ask for communications to be sent to you at a non-wa address Position yourself to argue that WA does not have most significant relationship to claim handling, and that WA law does not apply Follow the WAC militantly Key WAC provisions Acknowledge claim within 10 working days Respond to communications within 10 working days Complete investigation within 30 days unless the investigation cannot reasonably be completed within that time Hire counsel to help 4

5 Assume that you have no attorney-client privilege Precautions Segregate communications Label communications Insurer should send claimrelated communications WA insureds seek to disqualify insurer counsel Might enhance choice of law argument Reservation of rights Content Prompt, specific, and clear Intro in layman s terms Defending subject to RoR Split the file Not required Evidence of bad faith? Requesting information Consider effect of a coverage DJ on the underlying litigation Timely supplement IFCA Notice Cure alleged defect? Might avoid litigation Might set up MSJ Preemptive suit? Preemptive suit? Consider bad-faith implications Choose (non-wa?) forum 5

6 Defending a Bad Faith Suit Remove to federal court? Most insurers remove Read the assigned judge s bad faith opinions Escape Washington? Is there a viable alternate forum? Private-interest factors E.g., where are witnesses re: coverage and bad-faith issues? Public-interest factors E.g., not burdening local jurors with non-local disputes Consider filing parallel suit in the other jurisdiction Defending a Bad Faith Suit Discovery Anticipate early request for claim file and atty-client docs Prepare privilege log Move for protective order Show that attorney gave legal advice Consider early discovery re: damages Damages = Achilles heel Possibly rebut presumption of harm Defending a Bad Faith Suit Dispositive motions Insured s motion Look at proximate cause and damage issues If violation is incontrovertible Consider owning and humanizing i Angle for issue of fact re: reasonableness Insurer s motion Damages = Achilles heel Possibly mitigate insured s heightened expectations Consider big-picture consequences 6

7 Conclusion Washington is a tough jurisdiction There are ways to help mitigate risk both before and during litigation If you have any specific questions: Robert.Meyers@SedgwickLaw.com Eliot.Harris@SedgwickLaw.com Check Insurance Law Blog: SedgwickInsuranceLaw.com Questions? 7