Are You In Good Hands? 1 : Balancing Protection For Insurers and Insured in First Party Bad Faith Claims with a Uniform Standard

Are You In Good Hands? 1 : Balancing Protection For Insurers and Insured in First Party Bad Faith Claims with a Uniform Standard CASSANDRA FEENEY* ABSTRACT Bad faith insurance litigation is on the rise due to economic pressure and the rising costs of services. Insurance companies are more likely to deny legitimate claims, and policyholders are more inclined to bring fraudulent claims. Because states regulate bad faith claims, inconsistent jurisprudence for bath faith litigation has developed. Specifically, states vary on the duty owed by insurance companies, the standard of bad faith, and discovery procedures. Since these three aspects of litigation are intertwined, altering one standard could dramatically impact the procedure and practicality in bringing a bad faith claim on a state by state basis. A uniform procedural process can be developed that would better serve the interests of insurance companies, policyholders, and the judicial system. States should adopt a totality of the circumstances standard, along with the insurer duty of good faith and fair dealing, to determine whether bad faith has occurred. Further, when an insurance company has engaged in bad faith conduct, the claims file should be discoverable simultaneously with the contract claim. After more than forty years of state experimentation, it is time for states to adopt the proposed bright line rules to create a uniform procedure in this area of insurance law. 1 ALLSTATE INS. COMPANY, http://www.allstate.com/ (last visited Apr. 23, 2011). * Candidate for Juris Doctor, New England School of Law (2011). B.A., Political Science, magna cum laude, University of Rhode Island (2007). I would like to thank Sean Feeney and Eva Mancuso for being incredible mentors; my Note editors, Matthew Hranitz and Jarret Berg, for providing inspiration, guidance, and valuable suggestions throughout the writing process; and my family and my friends for their continued support and encouragement. 685

686 New England Law Review v. 45 685 INTRODUCTION Y ou consider yourself a prudent individual. 2 All your life, you have anticipated and planned for contingencies. 3 Accordingly, you hold automobile, home, and health insurance policies. 4 You seek out a dependable insurance company, diligently pay your premiums, and never fail to schedule an annual check up. 5 You think you have everything covered. 6 But are you really protected? 7 We all rely on affordable insurance to live healthy. 8 In 2009, Americans spent almost $809 billion on private health insurance alone, which amounts to over seventeen percent of Americans total spending. 9 Every year, insurance premiums increase at rates higher than inflation and wage raises, with the average increase of fifteen percent in 2009 and ninety seven percent from 2000 to 2008. 10 In early 2010, rates increased by double digit percentages in over twenty states Anthem Blue Cross and Blue Shield increased rates by up to thirty 2 See generally Anderson Cooper 360 Degrees: Insurance Battle (CNN television broadcast Oct. 2, 2007), available at http://transcripts.cnn.com/transcripts/0710/02/acd.02.html [hereinafter Insurance Battle] (presenting stories by policyholders who struggled with their insurer after they were injured). 3 See generally id. (discussing how one insured purchased automobile insurance to protect against the possibility of an automobile accident). 4 See EUGENE R. ANDERSON ET AL., INSURANCE COVERAGE LITIGATION 11.01 n.6 (2d ed. Supp. 2010) (listing some examples of first party insurance coverage, including health, accident, life, disability, homeowner s, fire, title, and property damage insurance ). This Note will discuss first party bad faith claims in general, which include health, home, and automobile insurance disputes. See also infra notes 42 47 (distinguishing first party claims from third party claims). 5 See generally Insurance Battle, supra note 2. 6 See id. (suggesting that there is a reasonable expectation that purchasing insurance automatically guarantees coverage in the event of an accident). 7 See id. (detailing how insurance companies willingness to delay, deny, and dispute insureds claims calls into question whether insureds are really protected). 8 See James R. Jebo, Overcoming Attorney Client Privilege and Work Product Protection in Bad Faith Cases, 70 DEF. COUNS. J. 261, 261 (2003). 9 Christopher J. Truffer et al., Health Spending Projections Through 2019: The Recession s Impact Continues, HEALTH AFF., Mar. 2010, at 1, 6, available at http://www.politico.com/static/ PPM136_100203_health_projections.html. 10 Good Morning America: Can Insurance Company Justify Rate Hike? (ABC television broadcast Feb. 17, 2010), available at http://abcnews.go.com/gma/yourmoney/video/ anthem blue cross rate hikes 9860814?tab=9482931&section=1206834&playlist=1363932. In the last decade, wages only increased by twenty nine percent, and the inflation rate was just over twenty percent. See HEALTH CARE FOR AMERICA NOW, HEALTH INSURERS FALSELY CLAIM RISING COSTS JUSTIFY SOARING PREMIUMS 5 fig.1 (2010), available at http://hcfan.3cdn.net /578b1f7456962bfa7a_r6m6bhcjn.pdf.

2011 A Uniform First-Party Bad-Faith Standard 687 nine percent in California. 11 Despite the astronomical cost of insurance, Americans continue to pay high prices with confidence that their claims will be paid if they suffer any harm to their health, homes, or vehicles. 12 But what happens if your home is ripped apart and tossed aside by a storm, leaving you abandoned on your debris strewn property? 13 There is a glimmer of hope as the insurance representative approaches but he offers you only half of the estimated cost to rebuild your $300,000 home. 14 Heartbroken and dejected, you attempt to navigate through the vague and confusing insurance policy for a better solution, but finding no guidance, you give up and accept the low offer to avoid years of battling through the legal system. 15 This situation raises the question of whether the insurance company engaged in bad faith conduct in a first party claim. 16 Bad faith has different meanings and requirements in each state, although most states generally recognize bad faith as an insurance company engaging in unreasonable or unfair conduct that is knowing or intentional. 17 Some examples of bad faith conduct include: denial of a claim that should have been paid; delay in investigation, settlement, or payment; or under settling a claim. 18 Bad faith 11 News Release, U.S. Dep t of Health & Human Servs., Sebelius Unveils New Report on Requested Premium Increases in States Across the Country (Feb. 18, 2010), available at http://www.hhs. gov/news/press/2010pres/02/20100218b.html. 12 See, e.g., Egan v. Mut. of Omaha Ins. Co., 620 P.2d 141, 145 (Cal. 1979) (describing the purpose of insurance to provide peace of mind and security ). 13 See David Dietz & Darrell Preston, The Insurance Hoax, BLOOMBERG MARKETS, Sept. 2007, at 34, 35. 14 See id. 15 See id. at 36. 16 First party claims are claims brought by a policyholder against their own insurance company, seeking direct compensation. See infra notes 42 47 and accompanying text (defining a first party claim and distinguishing it from a third party claim). 17 See generally STEPHEN S. ASHLEY, BAD FAITH ACTIONS 2:15 (2d ed. 1997) (explaining the definitions of bad faith that each state has adopted); see also ROBERT H. JERRY, II, UNDERSTANDING INSURANCE LAW 151 (2d ed. 1996) ( Indeed, good faith and bad faith remain elusive concepts with no universally accepted definition. Despite these uncertainties, the use of good faith and bad faith as standards to test the propriety of insurers conduct gives courts and juries considerable flexibility in adjusting the relative interests of insurers and insureds. ). 18 MODEL UNFAIR CLAIMS SETTLEMENT PRACTICES ACT 4 (Nat l Ass n of Ins. Comm rs 2008); see Victor E. Schwartz & Christopher E. Appel, Common Sense Construction of Unfair Claims Settlement Statutes: Restoring the Good Faith in Bad Faith, 58 AM. U. L. REV. 1477, 1488 n.50 (2009) (listing the states that adopted NAIC s model legislation). See generally David E. Bordon, Unfair Claims Practices and Bad Faith: A Guide for Insurers, FIDELITY L. ASS N J., Nov. 1995, at 99, available at http://www.fidelitylaw.org/publications/journals/pdf/1995/ 1995 bordon.pdf (discussing differences among the states unfair claims settlement practices

688 New England Law Review v. 45 685 litigation continues to increase, 19 and with additional economic pressure, such as would occur in a recession or due to internal mismanagement, insurance companies are more likely to engage in bad faith denials of legitimate claims. 20 Some specific causes of insurers increased bad faith include industry competition and a near monopoly by insurance brokers. 21 American citizens have suffered through dramatic increases in insurance rates for many decades, with one of the first major price spikes in the 1970s and another over 300% in the 1980s. 22 These early increases sparked a tort reform movement in the early 1970s, resulting in the new tort of firstparty bad faith, 23 which allows policyholders to collect extra contractual damages for bad faith conduct. 24 Over time, first party bad faith claims 25 developed significant statutes or regulations). 19 See Insurance Company Greed: An Industry Putting Profits Over Policyholders, AM. ASS N FOR JUST., http://www.justice.org/cps/rde/xchg/justice/hs.xsl/739.htm (last visited Apr. 23, 2011). See generally AM. ASS N FOR JUSTICE, TRICKS OF THE TRADE: HOW INSURANCE COMPANIES DENY, DELAY, CONFUSE AND REFUSE 2 (2008), available at http://www.hardywolf.com/pdf/aaj tricksof the trade Insurance Tactics.pdf (discussing some tactics used by insurance companies to make money). 20 The 1990 Dingell report, named after the committee chairman Representative John Dingell who led the investigation of insurance insolvency cases, uncovered common underlying bad faith conduct among insolvent companies, including mismanagement and fraudulent activity, false reports, reckless management,... fraud, greed and self dealings. Regulation Modernization, INS. INFO. INST. (Oct. 2010), http://www.iii.org/issue_updates/ Regulation Modernization.html; see Reference Library, FIGHT BAD FAITH INS. COS., http://www.badfaithinsurance.org/publications.html (last visited Apr. 23, 2011) (illustrating that the increase of bad faith among insurance companies correlates with the recessionary downturn). 21 See generally Richard E. Stewart & Barbara D. Stewart, The Loss of the Certainty Effect, RISK MGMT. & INS. REV., Sept. 2001, at 29, 30 34, available at http://www.badfaithinsurance.org/ media/rmirlosscertainty.pdf (discussing different economic changes and the influences on the insurance industry). 22 Americans for Insurance Reform Mission Statement, AMERICANS FOR INS. REFORM, http://www.insurance reform.org/mission.html (last visited Apr. 23, 2011). 23 Bad faith in the first party context generally must establish (1) the insurer s conduct was unreasonable and (2) the insurer knew or should have known the conduct was unreasonable. See, e.g., Turner v. State Farm Fire & Cas. Cos., 614 So. 2d 1029, 1032 (Ala. 1993); Brown v. U.S. Fid. & Guar. Co., 977 P.2d 807, 815 (Ariz. Ct. App. 1998); Dale v. Guar. Natʹl Ins. Co., 948 P.2d 545, 551 (Colo. 1997); Sampson v. Am. Standard Ins. Co., 582 N.W.2d 146, 149 (Iowa 1998); Empire Fire & Marine Ins. Co. v. Simpsonville Wrecker Serv., Inc., 880 S.W.2d 886, 888 (Ky. Ct. App. 1994); Lauzon v. State Farm Mut. Auto. Ins. Co., 674 A.2d 1246, 1247 (Vt. 1995); Weiss v. United Fire & Cas. Co., 541 N.W.2d 753, 757 (Wis. 1995); Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 950 51 (Wyo. 1998). 24 See, e.g., Gruenberg v. Aetna Ins. Co., 510 P.2d 1032, 1038 (Cal. 1973). 25 See ANDERSON ET AL., supra note 4, 11.01 n.6 (discussing examples of first party claims).

2011 A Uniform First-Party Bad-Faith Standard 689 procedural and substantive variations among states as a result of the McCarran Ferguson Act, which left regulation of insurance to the states. 26 Problems arise as states vary on the duty owed by insurance companies, the standard that constitutes bad faith, and the discovery process in bringing a breach of contract and bad faith claim. 27 Some states allow the claims to be heard together; other states bifurcate the claims for trial; 28 and at least two states provide for severance. 29 These variations raise further complications with the scope and timing of discovery on bad faith claims. 30 In particular, complications arise as to whether the claims file is discoverable, which is the most important evidence for the bad faith claim since it contains the insurance adjuster s comments about the claim and potential evidence of neglect or fraudulent handling. 31 Due to the variation among the states, some argue there should be more centralized regulations of the first party bad faith tort to avoid confusion, inconsistency, and lack of predictability. 32 Insurance consumers advocate for increased policyholder protection since insurance companies have the upper hand in providing policies, payments, and negotiations. 33 26 McCarran Ferguson Act, 15 U.S.C. 1011 15 (2006) ( [T]he continued regulation and taxation by the several States of the business of insurance is in the public interest.... ). 27 See infra Part I.C D. 28 E.g., Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex. 1970) (stating that, generally, bifurcation leaves the lawsuit intact but enables the court to hear and determine one or more issues without trying all controverted issues at the same hearing ); see Gregory S. Clayton, Bifurcation of Breach of Contract and Bad Faith Claims in First Party Insurance Litigation: Pros and Cons for Insurance Carriers and Policyholders, 21 VT. B.J. & L. DIG. 35, 35 (1995). 29 Rhode Island and Texas are the two states that sever claims. See Bartlett v. John Hancock Mut. Life Ins. Co., 538 A.2d 997, 1002 (R.I. 1988); Hall, 450 S.W.2d at 837 38. Severance divides the lawsuit into two or more separate and independent causes, and a judgment in one is final and appealable. Hall, 450 S.W.2d at 837 38. 30 See infra Part I.D. 31 Gary Williams, Litigating the Bad Faith Case, ARE YOU COVERED? (1998), http://areyoucovered.com/bflit.htm; see also Brown v. Superior Court, 670 P.2d 725, 734 (Ariz. 1983) (en banc) ( The claims file is a unique, contemporaneously prepared history of the companyʹs handling of the claim; in an action such as this the need for the information in the file is not only substantial, but overwhelming. ); Escalante v. Sentry Ins., 743 P.2d 832, 842 n.10 (Wash. Ct. App. 1987) ( In general, the relevancy objections raised... are meritless because the very nature of most bad faith actions makes most, if not all, of the insurer s claim file relevant. ). 32 See Bad Faith Claim Practices Defined, FIGHT BAD FAITH INS. COS., http://www.badfaith insurance.org/definitions.html (last visited Apr. 23, 2011); Regulation Modernization, supra note 20. 33 Allstate, State Farm, Other Bad Faith Insurance Companies Rack up Record Profits by Cheating Customers, NEWSINFERNO (Aug. 3, 2007, 9:30 AM), http://www.newsinferno.com/archives /1674 (describing insurers unfair tactics to limit the amount of money they spend on claims, including lying to customers about the meaning of the policy and damage estimates).

690 New England Law Review v. 45 685 The standard procedure in some companies is to procrastinate and dispute rather than honor policies. 34 Conversely, insurance companies argue the balance of protection has swung too far in favor of policyholders, and now insurers face enterprising plaintiffs attorneys, who seek technical violations to bring a claim, 35 and the risk of very large punitive damage awards one case awarded $145 million in punitive damages alone. 36 States should adopt the totality of the circumstances standard to determine whether bad faith has occurred, along with the insurer duty of good faith and fair dealing, and when an insurance company has engaged in bad faith conduct, the claims file should be simultaneously discoverable with the contract claim. 37 This best serves the judicial system by reducing litigation, while preserving the solvency of insurance companies and protecting policyholders from unfair treatment and ever increasing insurance rates. 38 This Note examines the procedural and discovery problems that arise in bringing a bad faith claim, analyzes why states have reached different procedural approaches, and calls on future courts and legislatures to act in a more consistent fashion in the interest of public policy. 39 Part I.A explains the history of the first party bad faith tort. Part I.B examines the different duties owed by insurance companies to the policyholder. Part I.C explores the different standards used to determine if an insurance company engaged in bad faith. Part I.D considers the procedural hurdles, specifically, when a bad faith claim can be heard and the scope of discovery. Part II analyzes the different standards for bad faith and argues that states must adopt a uniform bad faith standard and discovery procedure to provide a more predicable and fair system. Finally, Part III 34 Richard Hazleton, The Tort Monster that Ate Dow Corning, WALL ST. J., May 17, 1995, at A21. 35 Schwartz & Appel, supra note 18, at 1479 & n.6 (quoting White v. W. Title Ins. Co., 710 P.2d 309, 328 n.2 (Cal. 1985) (Kaus, J., concurring and dissenting) ( It seems... that attorneys who handle policy claims against insurance companies are no longer interested in collecting on those claims, but spend their wits and energies trying to maneuver the insurers into committing acts which the insureds can later trot out as evidence of bad faith. )). 36 See Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, 1 2, 69, 65 P.3d 1134, 1140 41, 1155 (awarding punitive damages for a bad faith claim where the insurance company contested liability and refused to settle the suit brought against its insured, who was responsible for an unsafe driving maneuver that killed one person and permanently disabled another), rev d 538 U.S. 408, 418 (2003) (finding that the punitive damages award violated the Fourteenth Amendment). 37 See infra Part II.A C. 38 See infra Part II. 39 See infra Part III.

2011 A Uniform First-Party Bad-Faith Standard 691 discusses potential implications of adopting a uniform, bright line standard. I. The Development of First Party Bad Faith Claims Implied in a contract is the obligation to practice good faith and fair dealing in performing and enforcing the contract, which typically provides only consequential damages if there is a breach of the contract. 40 This duty assumes the insurer will not frustrate the policyholder s right to receive benefits from the contract and that the insurer will give the policyholder s financial interests consideration equal to its own. 41 There are two classifications of bad faith claims: third party claims and first party claims. 42 The distinction between first party and third party claims depends on who the policyholder is. 43 Third party claims arise when an individual is injured by a policyholder, or an individual who contracted directly with the insurance company to indemnify them against liability to third parties; for instance, an automobile accident is a common example of a third party claim. 44 Third party bad faith occurs when the insurer refuses to defend or settle the claim. 45 By contrast, first party claims occur when the individual that is injured is the policyholder who contracted with the insurance company and seeks direct compensation; for example, seeking compensation for hospitalization is a common first party claim. 46 Firstparty bad faith arises when the insurer wrongfully refuses to settle a valid claim with the policyholder under his contract. 47 While this Note focuses only on first party insurance claims, the distinction between the two classifications is important for understanding how first party claims have developed and why states should provide particular safeguards to policyholders bringing first party claims. 48 40 U.C.C. 1 304 (2004); RESTATEMENT (SECOND) OF CONTRACTS 205 (1981). A number of jurisdictions have recognized the more stringent fiduciary duty from insurance companies to the policyholder. See infra Part I.B. 41 See Craig v. Iowa Kemper Mut. Ins. Co., 565 S.W.2d 716, 722 (Mo. Ct. App. 1978); ROBERT H. JERRY, II & DOUGLAS R. RICHMOND, UNDERSTANDING INSURANCE LAW 180 (4th ed. 2007). 42 See Mark J. Browne et al., The Effect of Bad Faith Laws on First Party Insurance Claims Decisions, 33 J. LEGAL STUD. 355, 356 n.1 (2004). 43 See ANDERSON ET AL., supra note 4, 11.01. 44 See id. 11.03. 45 See Comunale v. Traders & Gen. Ins. Co., 328 P.2d 198, 202 (Cal. 1958). 46 See ANDERSON ET AL., supra note 4, 11.01 n.6. 47 See Browne et al., supra note 42, at 356. 48 For example, some states provide a cause of action under the state s unfair claims settlement practices act for first party claims but not third party claims. See, e.g., W. VA. CODE ANN. 33 11 4a(a) (LexisNexis 2006) (where third party claimants cannot recover under the unfair claims settlement practices act, which provides a cause of action and extra contractual

692 New England Law Review v. 45 685 A. History of First Party Bad Faith Claims Bad faith claims have dramatically shifted the balance of insurance transactions between the insurer and the policyholder by providing the policyholder with more bargaining power. 49 Before bad faith claims, insurers were not penalized for refusing to pay a claim, even if the refusal was unreasonable or groundless. 50 Insurance company employees or agents often exploited this freedom by delaying, limiting, or denying payment of a claim. 51 Even with the most egregious conduct, policyholders were mostly limited to recovery for damages from breach of contract, 52 and penalties levied against insurance companies were not severe enough to deter the bad behavior. 53 It was not until 1973, a few years after the development of third party bad faith claims, when the California Supreme Court adopted first party bad faith claims allowing tort liability beyond the contract remedies. 54 Gruenberg v. Aetna Insurance Co. and its progeny emphasized two main reasons behind this new tort. 55 First, the bad faith tort was developed to preserve the special relationship between an insurer and its policyholder 56 since insurers are purveyors of a vital [quasi public] service. 57 Due to this special relationship, the insurer is expected to put the policyholder s interest before its own in maximizing profits and should act in good faith and fair dealing, especially since the relationship is inherently unbalanced relief in the context of first party bad faith claims). 49 See Nichols v. State Farm Mut. Auto. Ins. Co., 306 S.E.2d 616, 619 (S.C. 1983) (explaining that insurers could arbitrarily deny claims if there was no threat of possible bad faith claims). 50 Roger C. Henderson, The Tort of Bad Faith in First Party Insurance Transactions: Refining the Standard of Culpability and Reformulating the Remedies by Statute, 26 U. MICH. J.L. REFORM 1, 11 12 (1992) (explaining insurers freedom from penalties before the enactment of consumer protections). 51 Schwartz & Appel, supra note 18, at 1482 & n.20 (citing New Orleans Ins. Co. v. Piaggio, 83 U.S. (1 Wall.) 378, 386 (1872) (finding the damages could not exceed the insurance policy agreement plus interest)). 52 For the commonly recognized common law rule that limited damages to those contemplated by the contract, see Hadley v. Baxendale, 156 Eng. Rep. 145, 151 (Ex. 1854). 53 Schwartz & Appel, supra note 18, at 1483 & n.24 (citing Henderson, supra note 50, at 13 (explaining that most states did not provide recovery for attorney s fees and penalties)). 54 Gruenberg v. Aetna Ins. Co., 510 P.2d 1032, 1040, 1042 (Cal. 1973); see Schwartz & Appel, supra note 18, at 1485 86 & n.43 (listing various cases that adopted the bad faith tort in the 1970s and early 1980s). 55 See Anderson v. Cont l Ins. Co., 271 N.W.2d 368, 375 76 (Wis. 1978); see also Egan v. Mut. of Omaha Ins. Co., 620 P.2d 141, 146 (Cal. 1979) (discussing the public policy reasons for allowing the tort of bad faith). 56 Egan, 620 P.2d at 146. 57 Id.

2011 A Uniform First-Party Bad-Faith Standard 693 by the insurer s superior bargaining position and the adhesive nature of the insurance contract. 58 The second reason for the new tort was to provide punitive damages when insurers act egregiously in denying a claim, reflecting the court s attempt to prevent abuse of disparate power in the contractual relationship. 59 With this new tort, policyholders could collect extra contractual damages, including mental anguish, emotional distress, interest, lost income, other economic losses, and even punitive damages, when an insurance company wrongfully refused to pay an insurance claim. 60 Throughout the 1970s and 1980s, many states adopted and codified the first party bad faith tort. 61 In the 1970s, the National Association of Insurance Commissioners ( NAIC ) drafted model legislation, which many states adopted and still hold as their current statute. 62 Some provisions in the NAIC s model statute require insurers to act reasonably, including: communicating promptly; implementing investigation standards; accepting or denying claims timely; investigating before denying claims; and negotiating in good faith for prompt, fair, and equitable settlements of claims. 63 These provisions protect against the insurers offering substantially less than what should be recovered, which would otherwise compel policyholders to institute litigation. 64 Despite the model statute as a guide, states still adopted varying procedural approaches for bringing both a breach of contract and bad faith claim. 65 Further pleading and proof problems arise because common law 58 Id.; see Anderson, 271 N.W.2d at 374. 59 See Egan, 620 P.2d at 146. 60 Browne et al., supra note 42, at 355 56; Douglas R. Richmond, An Overview of Insurance Bad Faith Law and Litigation, 25 SETON HALL L. REV. 74, 79 80 (1994). 61 Schwartz & Appel, supra note 18, at 1485 86 & n.43 (listing Alabama, Alaska, Arkansas, Colorado, Connecticut, Idaho, Iowa, Kentucky, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, and Wisconsin as states that adopted first party bad faith by judicial decision in the 1970s and 1980s). 62 Id. at 1487 & n.48 (explaining the historical development of NAIC s Model Unfair Trade Practices Act ( MUTPA ) from the 1950s, when the Act was to regulate marketing practices, to 1972 when the MUTPA was amended to include regulations regarding unfair claims settlement practices). All the states have adopted the NAIC model statute, except South Carolina, South Dakota, and Mississippi. See ASHLEY, supra note 17, 9:02 & n.22. In 1990, the NAIC amended the Model Act, which was adopted by a few states, including Georgia, Illinois, Louisiana, Missouri, Nebraska, Oklahoma, and Rhode Island. Id., 9:14 & n.68. 63 Schwartz & Appel, supra note 18, at 1488; see IDAHO CODE ANN. 41 1329 (2010) (adopting the model legislation without significant modification). 64 Schwartz & Appel, supra note 18, at 1488. 65 See generally JOYCE C. WANG ET AL., CARLSON, CALLADINE & PETERSON LLP, BAD FAITH DEVELOPMENTS IN THE WEST: AN UPDATE (2007), available at http://www.ccplaw.com/

694 New England Law Review v. 45 685 bad faith exists side by side with statutory law, and each provides a different cause of action and recovery. 66 For example, the common law bad faith claims typically only cover policyholders and third party beneficiaries, while the statutes provide wider protections for more potential plaintiffs and recovery beyond that provided by common law, such as attorney s fees. 67 Even when the law that governs a bad faith claim is determined, issues continue to emerge. 68 Questions arise regarding the duty owed by the insurance company, the standard that must be met to show bad faith, and the timing of discovery for a bad faith claim. 69 B. Duty Owed by an Insurance Company In bringing a bad faith action, the core of statutes regulating unfair claims settlement is determining the reasonableness of insurance companies in denying coverage. 70 Various duties owed by the insurer to the policyholder have developed among the states. 71 The duty of good faith and fair dealing assumes the insurer will not frustrate the policyholder s right to receive benefits from the contract and that the insurer shall give the policyholder s financial interests consideration equal to its own. 72 On the other hand, a fiduciary is bound to act in the highest good faith toward his beneficiary, and owes a duty of undivided loyalty meaning the fiduciary may never seek to gain an advantage over his beneficiary. 73 publications/2007pdf/bad_faith_developments_in_western_states.pdf (highlighting the different bad faith claim approaches of Arizona, California, Nevada, Oregon and Washington State despite their close proximity). 66 See ASHLEY, supra note 17, 9:04; see, e.g., State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 58 59 (Fla. 1995) (noting that while there exists a statutory basis for first party badfaith claims, there was no action at common law). 67 See, e.g., Knasel v. Ins. Co. of Ill., 627 N.E.2d 137, 140 (Ill. App. Ct. 1993); Daney v. Haynes, 630 So. 2d 949, 954 55 (La. Ct. App. 1993). For example, Nevada allows for two separate causes of action: one under the Unfair Practices in Settling Claims Act that sets forth the standard for which an insurer is to process claims and provides a private right of action, and the second under common law that provides an implied covenant of good faith and fair dealing in every contract. NEV. REV. STAT. 686A.310(1) (2009); Pemberton v. Farmers Ins. Exch., 858 P.2d 380, 382 (Nev. 1993). Under these laws, third party claimants have no standing to sue for bad faith since there is no privity of contract, which is required for a common law cause of action. Gunny v. Allstate Ins. Co., 830 P.2d 1335, 1335 36 (Nev. 1992). For further examples, see ASHLEY, supra note 17, 9:02. 68 See infra Part I.B D. 69 See infra Part I.B D. 70 See Schwartz & Appel, supra note 18, at 1487 & n.47 (listing the unfair insurance claims settlement practices statutes of each state). 71 See sources cited infra notes 74 75. 72 See, e.g., Craig v. Iowa Kemper Mut. Ins. Co., 565 S.W.2d 716, 722 (Mo. Ct. App. 1978). 73 Douglas R. Richmond, Trust Me: Insurers Are Not Fiduciaries to Their Insureds, 88 KY. L.J. 1,

2011 A Uniform First-Party Bad-Faith Standard 695 Most states define the insurer policyholder relationship as somewhere between a fiduciary and arms length, 74 yet the developing trend is to recognize a fiduciary duty. 75 C. Standards to Determine Bad Faith The duty owed to policyholders impacts the standard to bring a badfaith claim. 76 States that recognize a fiduciary duty require the insurance company to always act in the policyholder s best interest, while states that maintain the usual contract duty of good faith and fair dealing allow the insurance company some flexibility as long as its conduct was reasonable. 77 States vary, however, as to the standard to defeat a bad faith claim. 78 The 1 (1999). 74 In an arms length business transactions, there is no duty to protect or benefit the other party or to disclose facts that the other party could, by its own diligence, discover. John F. Mariani et al., Understanding Fiduciary Duty, FLA. B.J., Mar. 2010, at 20, 26 & n.73; see Peter v. Schumacher Enters., Inc., 22 P.3d 481, 485 87 (Alaska 2001) (noting that insurer policyholder is not a fiduciary relationship, but recognizing four exceptions when the fiduciary principles may apply); Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487, 494 (Colo. 1998) (en banc) (describing a quasi fiduciary duty owed to the insured); see also Rawlings v. Apodaca, 726 P.2d 565, 571 (Ariz. 1986) (en banc) (noting that there is no fiduciary duty, but recognizing insurers have some duties of a fiduciary nature, including equal consideration, fairness and honesty); Farmers Grp., Inc. v. Trimble, 691 P.2d 1138, 1141 (Colo. 1984) (en banc) (explaining the different insurer policyholder duties among jurisdictions); Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, 32, 632 N.W.2d 856, 864 (finding an insurer policyholder relationship is similar to a fiduciary since an insurer must give at least as much consideration to the insured s interest as it does to its own ); Safeco Ins. Co. of Am. v. Butler, 823 P.2d 499, 503 (Wash. 1992) (en banc). 75 See, e.g., Frommoethelydo v. Fire Ins. Exch., 721 P.2d 41, 47 (Cal. 1986); Egan v. Mut. of Omaha Ins. Co., 620 P.2d 141, 146 (Cal. 1979); Fireman s Fund Ins. Co. v. Cont l Ins. Co., 519 A.2d 202, 204 (Md. 1987); Grewell v. State Farm Mut. Auto. Ins. Co., 162 S.W.3d 503, 509 (Mo. Ct. App. 2005); Freeman v. Leader Nat l Ins. Co., 58 S.W.3d 590, 598 (Mo. Ct. App. 2001); Myers v. Ambassador Ins. Co., 508 A.2d 689, 691 (Vt. 1986). See generally Richmond, supra note 73, at 3 n.12 (listing cases in Colorado, Illinois, Kansas, Louisiana, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, Vermont, and Wisconsin that have recognized a fiduciary relationship). 76 See Richmond, supra note 73, at 19 20 (suggesting that imposing a fiduciary duty is illsuited for the insurer policyholder relationship, especially considering the impact on the standard for bad faith). 77 See id. at 20 21. 78 This Note will focus on three main standards adopted among states, although there are some other standards adopted by a few states, such as unreasonableness, malicious conduct, gross negligence, and strict liability. See, e.g., Aetna Cas. & Sur. Co. v. Broadway Arms Corp., 664 S.W.2d 463, 465 (Ark. 1984) (malice); Gruenberg v. Aetna Ins. Co., 510 P.2d 1032, 1038 (Cal. 1973) (unreasonableness); Aetna Cas. & Sur. Co. v. Day, 487 So. 2d 830, 832 (Miss. 1986) (malice, gross negligence, or reckless disregard); Jessen v. Nat l Excess Ins. Co., 776 P.2d 1244,

696 New England Law Review v. 45 685 three main approaches discussed in this Note include the directed verdict standard, the fairly debatable standard, and the totality of thecircumstances standard. 79 1. The Directed Verdict Standard The directed verdict standard is the most restrictive standard for policyholders bringing a bad faith claim. 80 This standard was first developed in Alabama 81 and requires that the policyholder prove entitlement to a directed verdict 82 on the contract claim; otherwise the insurance company s denial of the contract claim cannot constitute bad faith as a matter of law. 83 Under this standard, if the evidence offered by either side creates an issue of fact as to the validity of the contract claim and the legitimacy of the claim denial, the tort claim must fail and should not be submitted to the jury. 84 A serious shortcoming of the directedverdict standard is that the insurance company, by dishonesty, can create a factual dispute, which renders the contract claim unsuitable for a directed verdict. 85 By way of illustration, if an insurance adjuster committed perjury and the perjured testimony was wholly rejected by the jury, the mere fact that such testimony took the case to the jury would prevent a directed verdict. 86 1247 (N.M. 1989) (gross negligence); Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73, 80 (W. Va. 1986) (malice). For a discussion of these standards not discussed in this Note, see Dominick C. Capozzola, Note, First Party Bad Faith: The Search for a Uniform Standard of Culpability, 52 HASTINGS L.J. 181, 196 201 (2000). 79 See discussion infra Parts I.C.1 3, II.B. 80 See Skaling v. Aetna Ins. Co., 799 A.2d 997, 1004 (R.I. 2002) (rejecting the directed verdict standard in recognizing the heavy burden placed on policyholders). 81 See Nat l Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala. 1982). 82 A directed verdict means that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on a particular issue. FED. R. CIV. P. 50(a)(1). This means the policyholder must show that a defendant s defense to the contract claim is devoid of any triable issue of fact or reasonably arguable question of law. Safeco Ins. Co. of Am. v. Sims, 435 So. 2d 1219, 1225 (Ala. 1983). 83 Dutton, 419 So. 2d at 1362. 84 Id. at 1362. 85 See infra Part II.B.1. 86 For example, in Skaling, the Rhode Island Supreme Court recognized factual disputes cannot be determined as a matter of law, thereby making the directed verdict standard of proof unworkable and unjust in this context. Skaling v. Aetna Ins. Co., 799 A.2d 997, 1003, 1008 (R.I. 2002) ( If the claims examinerʹs testimony is untruthful and rejected by the jury, plaintiff has established a breach of the insurance contract; however, because the issue was resolved by a finder of fact and not the trial justice at the close of evidence, the insurer is insulated from bad faith, notwithstanding its reckless conduct and oppressive tactics. ); cf. Zilisch v. State Farm Mut. Auto. Ins. Co., 995 P.2d 276, 279 80 (Ariz. 2000); Brewer v. Am. &

2011 A Uniform First-Party Bad-Faith Standard 697 2. The Fairly Debatable Standard The intermediate approach, adopted by many jurisdictions, is the fairly debatable standard, which requires insurers to show [1] the absence of a reasonable basis for denying benefits of the policy and [2] the defendant s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. 87 The roots of the fairly debatable standard flow from Anderson v. Continental Insurance Co., where the Wisconsin Supreme Court held insurers could contest a fairly debatable claim as a matter of fact or law. 88 Under the fairly debatable standard, insurers may argue there was a reasonable basis to believe the policyholder was not covered and that, even in the event of an erroneous denial, there was no bad faith. 89 If the insurer cannot show it was reasonable in denying the claim, then the bad faith claim is tried before the jury. 90 If the insurer can prove that no benefits were owed under the policy, then the insurer could not have acted in bad faith in its relationship with its policyholder. 91 The fairly debatable approach, however, ignores any wrongful conduct by the insurer outside of the contract claim, such as those factors set out in the NAIC model legislation, including misconduct in investigation, denial, or litigation. 92 Rather, this approach solely focuses on the reasonableness of the insurer in denying the claim. 93 3. The Totality of the Circumstances Standard The most liberal approach, adopted by a minority of states, allows the bad faith claim to be heard even if the plaintiff does not prevail on the breach of contract claim. 94 Under this standard, insurers are entitled to challenge claims that are fairly debatable; however, this does not provide an absolute defense to the bad faith claims. 95 Rather, the insurer s belief in Foreign Ins. Co., 837 P.2d 236, 238 (Colo. Ct. App. 1992); Robinson v. State Farm Fire & Cas. Co., 583 So. 2d 1063, 1066 (Fla. Dist. Ct. App. 1991). 87 Anderson v. Cont l Ins. Co., 271 N.W.2d 368, 376 (Wis. 1978). Some jurisdictions recognize a similar standard, in which a genuine dispute as to whether coverage existed is a defense to a bad faith claim. See, e.g., Chateau Chamberay Homeowners Ass n v. Associated Int l Ins. Co., 108 Cal. Rptr. 2d 776, 784 85 (Cal. Ct. App. 2001). 88 Anderson, 271 N.W.2d at 376. 89 See, e.g., Skaling, 799 A.2d at 1011. 90 See Anderson, 271 N.W.2d at 376 77. 91 Barlett v. John Hancock Mut. Life. Ins. Co., 538 A.2d 997, 1000 (R.I. 1988). 92 See sources cited supra note 18 and accompanying text. 93 Anderson, 271 N.W.2d at 376. 94 See, e.g., Zilisch v. State Farm Mut. Auto. Ins. Co., 995 P.2d 276, 280 81 (Ariz. 2000); Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 375 (Ky. 2000). 95 Zilisch, 995 P.2d at 279.

698 New England Law Review v. 45 685 fair debatability of the claim is a question of fact for the jury. 96 The appropriate inquiry is whether there is sufficient evidence from which reasonable jurors could conclude that in the investigation, evaluation, and processing of the claim, the insurer acted unreasonably and either knew or was conscious of the fact that its conduct was unreasonable. 97 The totality of the circumstances standard considers all the circumstances involved in denial of coverage when evaluating the insurer s liability for bad faith. 98 Some of these factors include: [1] efforts or measures taken by the insurer to resolve the coverage dispute promptly or in such a way as to limit any potential prejudice to the insureds; [2] the substance of the coverage dispute or the weight of legal authority on the coverage issue; [3] the insurer s diligence and thoroughness in investigating the facts specifically pertinent to coverage; and [4] efforts made by the insurer to settle the liability claim in the face of the coverage dispute. 99 If there are disputes over material facts relating to any of these factors, the court must submit the bad faith claim to the jury. 100 States that adopt this approach view the fairly debatable standard by itself as too narrow and impose on insurance companies a duty to investigate, negotiate, and attempt to settle the claim in a fair and reasonable manner. 101 Further, these states hold that the insurer can breach the duty owed to the policyholder, even if there was no policy coverage for the loss. 102 This standard recognizes that policyholders rely on insurance companies and that insurance companies can cause harm to policyholders beyond the loss of recovery under the contract. 103 96 Id. 97 Id. at 280. 98 John J. Jerue Truck Broker, Inc. v. Ins. Co. of N. Am., 646 So. 2d 780, 783 (Fla. Dist. Ct. App. 1994). 99 State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 62 63 (Fla. 1995). While this case lists five factors to consider in evaluating third party claims, the four listed apply to first party claims. See Robinson v. State Farm Fire & Cas. Co., 583 So. 2d 1063, 1066 68 (Fla. Dist. Ct. App. 1991). 100 John J. Jerue Truck Broker, Inc., 646 So. 2d at 783. 101 Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 375 (Ky. 2000). 102 See Light v. Allstate Ins. Co., 506 S.E.2d 64, 71 & n.15 (W. Va. 1998) (citing examples of states that hold whether or not to bifurcate and stay a first party bad faith claim is a discretionary determination for the trial court ); Hatch v. State Farm Fire & Cas. Co., 842 P.2d 1089, 1099 (Wyo. 1992). 103 See, e.g., Johnson, 36 S.W.3d at 375 76.

2011 A Uniform First-Party Bad-Faith Standard 699 D. Procedural Problems with Bad Faith Claim Discovery In evaluating a breach of contract claim and bad faith claim, courts often face the difficult question of whether to stay discovery on the badfaith claim or to allow simultaneous discovery. 104 Policyholders often request the claims file to prove bad faith and argue discovery should be conducted simultaneously. 105 Insurers argue the claims file should be protected as it contains privileged information and comments about the claims that could be prejudicial. 106 If discovery is allowed simultaneously, another issue the court must decide is whether to allow the breach ofcontract and bad faith claims to be heard together or whether to bifurcate the claims for trial. 107 The typical procedure allows simultaneous discovery on the breach of contract and bad faith claims, while bifurcation allows the breach of contract claim to be tried before the bad faith claim. 108 1. Simultaneous Discovery of the Breach of Contract and Bad Faith Claims Some states allow simultaneous discovery based on the overwhelming need for the information in the claims file. 109 These states analogize the bad faith actions to those by a client against an attorney, which can only be proven by showing exactly how the company processed the claim, how thoroughly it was considered and why the company took the action it did. 110 For example, in Brown v. Superior Court Arizona rejected the argument that the claims file is protected by a privilege and that discovery should be stayed. 111 The Arizona Supreme Court held if a policyholder is injured, an insurance company could not automatically assume that litigation will result, as this construes Federal Rule of Civil Procedure 26(b)(3) too broadly. 112 Rather, simultaneous discovery furthers judicial economy in a number of ways, including: eliminating duplicative discovery, allowing the bad faith portion of the trial to commence immediately after the contract claim, and avoiding discovery disputes over 104 Wolf v. Geico Ins. Co., 682 F. Supp. 2d 197, 199 200 (D.R.I. 2010) (discussing the debate between allowing simultaneous discovery or staying discovery). 105 See sources cited supra note 31 and accompanying text. 106 See, e.g., Skaling v. Aetna Ins. Co., 799 A.2d 997, 1010 (R.I. 2002); In re Allstate Cnty. Mut. Ins. Co., 209 S.W.3d 742, 746 47 (Tex. App. 2006). 107 See infra notes 114 19 and accompanying text. 108 See Wolf, 682 F. Supp. 2d at 199 200. 109 See sources cited supra note 31. 110 Brown v. Superior Court, 670 P.2d 725, 734 (Ariz. 1983). 111 Id. at 734 35. 112 Id. at 732.

700 New England Law Review v. 45 685 what relates to the bad faith claim. 113 Most jurisdictions bifurcate the contract claim and the bad faith claim to avoid prejudice to the insurer. 114 Bifurcation leaves the lawsuit intact but allows the court to determine the issues without trying all controverted issues simultaneously. 115 The policy behind this approach is to avoid prejudice to the insurer in cases where the bad faith claim could improperly influence the jury with inflammatory evidence. 116 For example, prejudice could arise where the insurance company made an offer of settlement. 117 If evidence of the settlement offer is introduced in the contract portion of the trial, the jury may conclude that the insurance company conceded liability under the contract. 118 If there is no evidence of the settlement offer, then this deprives the insurance company an opportunity to show they acted reasonably. 119 113 Wolf, 682 F. Supp. 2d at 199. 114 See, e.g., Brown v. Gen. Motors Corp., 407 P.2d 461, 463 64 (Wash. 1965); see also Dan Cytryn, Bifurcation in Personal Injury Cases: Should Judges Be Allowed to Use the B Word?, 26 NOVA L. REV. 249, 253 54 (2001) (explaining that twenty four states allow bifurcation on a discretionary basis; ten states allow bifurcation in extraordinary situations, which includes avoiding prejudice to the insurer; thirteen states have not taken a firm position, including Alaska, Hawaii, Idaho, Kentucky, Mississippi, Missouri, Montana, New Hampshire, Rhode Island, Utah, Vermont, Wisconsin, and Wyoming; New York mandates bifurcation in most personal injury cases; and Illinois and Texas do not allow bifurcation). But see Light v. Allstate Ins. Co., 506 S.E.2d 64, 71 n.15 (W. Va. 1998) (citing cases in Montana, Idaho, Texas, and Illinois, along with other states, that provide the trial court has discretion to bifurcate and state a first party bad faith claim). Federal Rule of Civil Procedure 42(b) provides the legal basis for bifurcation, which gives courts discretionary power to separate issues, but cautions that this rule should not be exercised liberally or indiscriminately. FED. R. CIV. P. 42(b). 115 Hall v. City of Austin, 450 S.W.2d 836, 837 38 (Tex. 1970). 116 RICHARD L. MCMONIGLE & MICHAEL J. FARRELL, UM/UIM SEVERANCE ISSUES IN A POST KOKEN ERA: THE DEFENSE PERSPECTIVE 3 4 (2009), available at http://www.postschell.com/ docs/publications/461.pdf. 117 See, e.g., Allstate Ins. Co. v. Hunter, 865 S.W.2d 189, 193 94 (Tex. App. 1993). The real problem in trying all of these claims together is an internal conflict which may unfairly force the insurer to choose between 1) insisting on its right to exclude evidence of settlement negotiations and coverage determinations (thereby losing the advantage of showing that it was attempting to be reasonable in defense of the bad faith claims) and 2) putting on such evidence and risking a prejudicial inference that it has admitted liability on the contract action. Id. 118 Id. 119 Id.

2011 A Uniform First-Party Bad-Faith Standard 701 2. Staying Discovery on the Bad Faith Claims The jurisdictions that stay discovery rationalize that the insurance company should be protected from unfair prejudice and revealing privileged information. 120 These states also find judicial economy is protected by avoiding needless discovery of the bad faith claim, since discovery is then contingent on the plaintiff prevailing on the contract claim. 121 Procedurally, severance of a claim is essentially the same as staying discovery, although only Rhode Island and Texas sever the contract and bad faith claims. 122 When discovery is stayed, the breach ofcontract claim proceeds through discovery and trial, and if a jury determines that there was a breach, only then can the bad faith claim discovery take place. 123 The claims are then bifurcated for trial and the badfaith claim goes forward depending on whether the standard to determine bad faith is met. 124 II. Proposed Bright Line Rules States Should Adopt to Harmonize First Party Bad Faith Litigation States must adopt a clear, unified approach when faced with breach ofcontract and bad faith claims. 125 Policyholders need protection from unfair treatment and excessive rates, especially since there is a fundamental economic conflict between the insurer and the policyholder the insurance company does not want to pay and the policyholder wants to be completely reimbursed. 126 On the other hand, insurance companies must be protected against fraudulent claims to preserve solvency. 127 A balance must be struck between these two seemingly conflicting concerns for fairness 120 See Wolf v. Geico Ins. Co., 682 F. Supp. 2d 197, 199 (D.R.I. 2010) (citing cases that stayed discovery based on attorney client privilege, judicial economy, and avoiding prejudice to the insurance company); Skaling v. Aetna Ins. Co., 799 A.2d 997, 1010 (R.I. 2002) (noting the significant procedural protections for insurers in staying discovery). 121 Wolf, 682 F. Supp. 2d at 199. 122 See, e.g., Bartlett v. John Hancock Mut. Life Ins. Co., 538 A.2d 997, 1002 (R.I. 1988); Hall v. City of Austin, 450 S.W.2d 836, 837 38 (Tex. 1970). 123 Clayton, supra note 28, at 35. 124 See infra Part II.B. 125 Cf. Stewart & Stewart, supra note 21, at 43 (arguing for more certainty in the insurance industry). 126 Dietz & Preston, supra note 13 (quoting California Lieutenant Governor John Garamendi, who was California s Insurance Commissioner from 2002 to 2006). 127 See Sharon Tennyson & William J. Warfel, The Law and Economics of First Party Insurance Bad Faith Liability, 16 CONN. INS. L.J. 203, 217 18 (2008); Insurance Fraud, INS. INFO. INST., http://www.iii.org/media/hottopics/insurance/fraud/ (last visited Apr. 23, 2011).

702 New England Law Review v. 45 685 and adequacy. 128 In recognizing insurance companies duty of good faith and fair dealing, states should embrace the totality of the circumstances standard to determine whether bad faith has occurred, and when an insurance company has engaged in bad faith conduct, the claim file should be discoverable up to the point of the claim denial. 129 A. Responsibility. What s Your Policy? 130 : Insurance Companies Owe Their Policyholders a Duty of Good Faith and Fair Dealing. The typical duty implied in a contract is the obligation of good faith and fair dealing in performing and enforcing a contract. 131 This duty assumes the insurer will not frustrate the policyholder s right to receive benefits from the contract and that the insurer is to give the policyholder s financial interests consideration equal to its own. 132 Some courts have expressed doubt as to whether there is any real difference between a fiduciary duty and a duty of good faith in the insurance context. 133 There are many factors that make the insurance contract unique, including: insurance companies are in a superior bargaining position; insurance contracts are adhesion contracts; 134 policyholders are vulnerable when the claim is submitted due to the physical injury or economic loss; 135 insurance companies provide a quasi public service and should be held to a higher standard; 136 and insurance companies hold adjudicatory responsibility toward policyholders. 137 Further, insurance companies often admit they owe fiduciary obligations during litigation. 138 Public perception 139 and even 128 See infra Part II.A C (analyzing the different litigation approaches). 129 See infra Part II.A C. 130 LIBERTY MUTUAL INS. CO., http://www.libertymutual.com/ (last visited Apr. 23, 2011) (stating Liberty Mutual Insurance Company s slogan). 131 U.C.C. 1 304 (2004); RESTATEMENT (SECOND) OF CONTRACTS 205 (1981); see supra Part I.B; supra note 40 and accompanying text. 132 See Craig v. Iowa Kemper Mut. Ins. Co., 565 S.W.2d 716, 722 (Mo. Ct. App. 1978); supra text accompanying note 72. 133 Van Noy v. State Farm Mut. Auto. Ins. Co., 16 P.3d 574, 579 n.2 (Wash. 2001). 134 Egan v. Mut. of Omaha Ins. Co., 620 P.2d 141, 146 (Cal. 1979). 135 Dolan v. Aid Ins. Co., 431 N.W.2d 790, 792 (Iowa 1988). 136 William M. Goodman & Thom Greenfield Seaton, Foreword, Ripe for Decision, Internal Workings and Current Concerns of the California Supreme Court, 62 CAL. L. REV. 309, 346 47 (1974). 137 Rawlings v. Apodaca, 726 P.2d 565, 570 (Ariz. 1986) ( The insurer evaluates the claim, determines whether it falls within the coverage provided, assesses its monetary value, decides on its validity and passes upon payment. ). 138 See ANDERSON ET AL., supra note 4, 11.06 (discussing how insurers will argue there is a fiduciary duty when it is favorable for them to do so, such as to shift responsibility); Eugene R. Anderson & James J. Fournier, Why Courts Enforce Insurance Policyholdersʹ Objectively Reasonable Expectations of Insurance Coverage, 5 CONN. INS. L.J. 335, 385 91 & nn.150 63 (1998)

2011 A Uniform First-Party Bad-Faith Standard 703 the advertisements by insurance companies promote a feeling of safety and protection in customers, with insurers promis[ing] to the insured to simplify his life, to put him in good hands, to back him up with a piece of the rock or to be on his side, suggesting the insurer will not abandon the policyholder during the time of need. 140 Insurance contracts are also unique because policyholders are not seeking a commercial advantage through coverage from an insurance company, as would be the case in other contracts in the ordinary course of business. 141 Rather, policyholders are hiring the insurer to act in the policyholder s best interest in advising on risk management as well as processing, litigating, and monitoring claims. 142 In this way, the insurer is an agent of the policyholder. 143 Under agency law, an agent owes fiduciary duties of undivided loyalty to its principal and must place the principal s interests paramount to its own interests. 144 Under this view, the claims file is analogous to the file of a client held by an attorney, and the client has a (citing court documents from Fireman Fund, Continental Casualty, Continental Insurance Company, Nation Union, Liberty Mutual, Home, St. Paul Fire and Casualty, and Hartford arguing they owe their policyholders a fiduciary duty to look after the interests of the policyholder, due in part to the insurer s expertise in the business). 139 1 JAMES J. LORIMER ET AL., THE LEGAL ENVIRONMENT OF INSURANCE 37 38 (3d ed. 1987) ( While an insurance policy does represent a contractual commitment, the attitudes of the general public, the legislatures, and the courts make clear that the insurance agreement is viewed as having broader ramifications than a mere contract. ). 140 D Ambrosio v. Pa. Nat l Mut. Cas. Ins. Co., 396 A.2d 780, 786 (Pa. Super. Ct. 1978); see State Farm Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1156 n.6 (Alaska 1989); C & J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 178 (Iowa 1975) ( We would be derelict in our duty to administer justice if we were not to judicially know that modern insurance companies have turned to mass advertising to sell protection. ); see also Marc S. Mayerson, First Party Insurance Bad Faith Claims: Mooring Procedure to Substance, 38 TORT TRIAL & INS. PRAC. L.J. 861, 866 (2003). 141 Crisci v. Sec. Ins. Co., 426 P.2d 173, 179 (Cal. 1967) ( [P]laintiff did not seek... to obtain a commercial advantage but to protect herself against the risks of accidental losses, including the mental distress which might follow from the losses. Among the considerations in purchasing liability insurance... is the peace of mind and security it will provide in the event of an accidental loss.... ); McCorkle v. Great Atl. Ins. Co., 637 P.2d 583, 588 (Okla. 1981) ( [O]ne of the primary reasons a consumer purchases any type of insurance (and the insurance industry knows this) is the peace of mind and security that it provides in the event of loss. ). 142 See Matthew D. Schultz, Bad Faith or No Faith? Finding a Place for Wrongful Refusal to Defend in Florida s Bad Faith Jurisprudence, 29 FLA. ST. U. L. REV. 1389, 1428 (2002). 143 See Craig v. Iowa Kemper Mut. Ins. Co., 565 S.W.2d 716, 723 24 (Mo. Ct. App. 1978) (discussing agency law and the ensuing fiduciary duties). 144 Comm. on Childrenʹs Television, Inc. v. Gen. Foods Corp., 673 P.2d 660, 676 (Cal. 1983); RESTATEMENT (THIRD) OF AGENCY 1.01 (2006); see also RESTATEMENT (SECOND) OF TRUSTS 170(1) & cmts. a, q (1959).

704 New England Law Review v. 45 685 right of access to the claims file since it belongs to the client. 145 Courts have explained that the nature of an attorney s responsibility to the client creates a fiduciary relationship, and because an insurer is entrusted to defend a claim on behalf of the insured, it seems apparent that an insurer acts in a fiduciary capacity. 146 While there is strong support to impose a fiduciary duty on insurers, states should not go as far as to require this onerous duty. 147 Imposing this duty creates numerous practical issues for insurers in always putting policyholders interests before their own. 148 Insurers would have a difficult time protecting themselves. 149 In particular, insurers could not conduct fraud investigation, which would otherwise serve to reduce litigation costs and premiums. 150 Further, business transactions would be severely limited if a fiduciary duty were imposed because the insurer would have to use the utmost good faith and, if [the insurer gained] profits from the transaction, the law presumes the agreement was entered into by the beneficiary without sufficient consideration and under undue influence. 151 Finally, if a fiduciary duty were imposed, an insurer would not able to challenge bad faith claims. 152 Insurers would not be able to fully investigate claims and deny payment, even if they had reasonable grounds to dispute. 153 This is because any decision adverse to the policyholder would be an actionable tort. 154 Since good faith and fair dealing should remain the duty owed by insurers to policyholders, the next issue is fixing 145 Grewell v. State Farm Mut. Auto. Ins. Co., 102 S.W.3d 33, 37 (Mo. 2003). 146 Grewell v. State Farm Mut. Auto. Ins. Co., 162 S.W.3d 503, 508 09 (Mo. Ct. App. 2005). 147 See Richmond, supra note 73, at 24 (presenting some of the difficulties with imposing a fiduciary duty). 148 See id. 149 See id. 150 See Time Ins. Co. v. Burger, 712 So. 2d 389, 393 (Fla. 1998) ( Payment of illegitimate claims raises the cost of insurance for all policyholders. ); Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 60 (Tex. 1997) (Hecht, J., concurring) ( Indeed, from a competitive viewpoint, an insurer must pay only valid claims and must deny invalid claims to keep premiums to customers at a minimum. ). 151 Comm. on Childrenʹs Television v. Gen. Foods Corp., 673 P.2d 660, 676 (Cal. 1983); see also McCollough v. Rogers, 431 So. 2d 1246, 1248 (Ala. 1983) (explaining presumption of undue influence); Prueter v. Bork, 435 N.E.2d 109, 112 (Ill. App. Ct. 1981) (describing a rebuttable presumption that a transaction in which the trustee benefits is fraudulent); Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985) (explaining that if a confidential relationship exists, any transaction from which the trustee benefits is presumed fraudulent). 152 See Richmond, supra note 73, at 24. 153 See id. 154 William T. Barker et al., Is an Insurer a Fiduciary to Its Insureds?, 25 TORT & INS. L.J. 1, 8 (1989).