DRAFT
Topic III
A. Who is suing? Does it matter?
1. Whether suit is brought by the insurer or insured should not materially impact on discovery and privilege issues
2. The gist of the attorney-client privilege is fairly uniform among jurisdictions, although it varies in detail
3. There are three principal exceptions to the attorney client privilege: a.
legal capacity : insurers often hire attorneys to act as claims handlers, seeking to shield claims-handling conduct from discovery by asserting the attorney-client privilege and workproduct immunity. Claims-handling is part of the regular, ordinary business activities of an insurer and, therefore, claims-handling discovery is not shielded by the work product or attorney-client privileges b.
crimes and fraud : the attorney-client privilege is vitiated when the client seeks the services of the lawyer to commit a crime or fraud c.
“joint client exception” : the so-called “tripartite” relationship among the insurer, its appointed defense counsel, and the insured may trigger the so-called “joint client exception” to the attorney-client privilege, under which the insurer may not invoke the attorney-client privilege against its insured concerning communications with the attorney hired to represent the insured
4. There are two principal doctrines of implied waiver a.
“At issue” : the attorney-client privilege is waived upon an assertion of a civil claim or an affirmative defense that raises as an issue a matter to which otherwise privileged material is relevant
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DRAFT b.
“Advice of counsel” : An insurance company may defend itself against allegations of bad faith by providing evidence that it relied upon the advice of competent counsel
B. First party claims v. third party claims
1. The applicable standard of conduct under the jurisdictions law will drive discovery; insureds should be able to discover the same categories of discoverable information ( i.e
., claims files) without reference to whether the claim is a first-party or third-party bad faith claim (although insurers may be expected to argue the contrary). See, e.g., Allstate Indemnity Co. v. Ruiz , 899 So.2d 1121 (Fla. 2005)
(quoted below)
2. General overlap a. Each jurisdiction recognizes that a bad faith claim emanates from the relationship between an insurer and its insured b. The linchpin of the bad faith cause of action is the implied covenant of good faith and fair dealing, which is implied by law and imputed into all insurance policies c. Both first- and third-party bad faith claims derive from the duty of good faith and fair dealing d. A bad faith cause of action arises when the insurer fails to provide an insured a recognized right and the insurer’s failure violates the standard of conduct imposed by case law or statute, which standard differs from jurisdiction to jurisdiction e. Critical to any analysis is the question whether a particular jurisdiction bases a bad faith cause of action on breach of contract or tort. This can significantly impact the nature and extent of damages, the applicable statute of limitations, and the types of defenses available f. A majority of jurisdictions have determined that the cause of action for breach by the insurer of the implied covenant of good faith and fair dealing sounds in tort g. Although the risks to the insured and concomitant responsibilities of the insurer are distinguishable in first- and third-party claims, and the applicable standard of conduct therefore is necessarily different, regardless of whether firstparty or third-party coverage is at issue, the unreasonableness of the insurer’s conduct is the essence of bad faith
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DRAFT
3. First-party claims a. Insureds in the first-party context may allege that the insurer: i. arbitrarily denied a claim ii. denied a claim that was reasonable or “ fairly debatable” iii. denied a claim without adequate investigation iv. failed to offer a timely coverage analysis v. used deceptive practices or improper standards to deny a claim vi. unreasonably delayed in resolving a claim vii. made unreasonable demands for proof of loss viii. employed abusive practices or coercion to compel compromise of a claim b. Determining whether the insurer acted in bad faith commonly requires demonstrating that the insurer’s conduct was unreasonable and that the insurer knew or reasonably should have known that it was being unreasonable
4. Third-party claims a. Insureds may allege that the insurer: i. wrongly denied coverage ii. denied coverage without adequate investigation iii. failed to provide a complete, conflict-free defense for a potentially covered claim iv. placed its own interests over those of the insured v. failed to negotiate and/or accept a reasonable settlement offer within insurance limits b. Determining whether the insurer acted in bad faith commonly requires weighing such factors as: i. extent of potential damages
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DRAFT ii. probability of liability iii. amount of policy limits iv. adequacy of insurer’s investigation v. adequacy of the defense provided by the insurer vi. insurer’s willingness to engage in settlement negotiations vii. all factors showing that the insurer exhibited greater concern for its own financial interests than it did for its insured’s exposure
C. Recent Cases
1.
Allstate Indemnity Co. v. Ruiz , 899 So.2d 1121 (Fla. 2005) a. Insured bringing first-party bad faith suit has the right to discover all materials in the underlying insurance claim and related litigation file b. Court refused to credit “inappropriate distinctions with regard to discovery rules applicable to statutory first-party and thirdparty bad faith actions, whether statutory or common law.” Id. at 1112.
c. “[A]ny distinction between first- and third-party bad faith actions with regard to discovery purposes is unjustified and without support … and creates an overly formalistic distinction between substantively identical claims.” Id. at 1128.
d. “Just as we have concluded in the context of third-party actions, we conclude that the claim file type material presents virtually the only source of direct evidence with regard to the essential issue of the insurance company’s handling of the insured’s claim….there is simply no logical or legally tenable basis upon which to deny access to the very information that is necessary to advance such action but also necessary to fairly evaluate the allegations of bad faith-- information to which they would have unfettered access in the third-party bad faith context.” Id. at 1128-29.
2.
Hutchinson v. Farm Family Cas. Ins. Co ., 867 A.2d 1 (Conn. 2005) a. Insured seeking discovery of privileged information in a claims file must establish probable cause to believe insurer sought advice of counsel to conceal or facilitate its bad faith conduct
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DRAFT
Topic IV.
A. What to seek
1. Underwriting file, including the policy, application, amendments and letters
2. Claims file, including all documents regarding the processing, payment and/or denial of the claim
3. investigative reports, including any videos and photographs
4. loss reserves
5. Underwriting manuals, guidelines
6. Claims-handling manuals, guidelines, including additions, deletions and other revisions from previous versions and any other materials used to train claims handlers
7. Document retention policy
8. Reinsurance information, including reinsurance policy and communications with reinsurer(s)
9. Marketing materials and advertisements concerning the coverage purchased
10. Training materials and other documents sent to independent agents to teach them how to advertise, promote and sell insurance
11. Other claim files
12. Insurance commissioner investigations
• When faced with the inevitable objections to those discovery requests, it is crucial that the policyholder not accept the insurer’s position that the policyholder is not entitled to the documents and information it seeks— evidence that can greatly enhance the policyholder's likelihood of success.
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B. Who to ask
1. claims handler assigned to the file
2. his or her supervisors
3. every person who had any involvement in handling the claim
4. the various levels of the company which handled the claim: Local
Office, Branch Office, Regional Office, District Office, and Home
Office
5. 30(b)(6) or state law equivalent
C. What you should and should not produce
D. Use of experts in discovery to improve the client’s position
1. Industry experts are common in bad faith actions
2. Expert witnesses—including insurance practices experts—frequently are called on to testify about the reasonableness of settlement offers; the customary practice of insurers and their employees and agents; and, in some cases, the ultimate issue of whether the insurer acted in violation of implied or statutory obligations or departed from “good faith” claims practices
3.
Scope of testimony may include whether the insurer : a. has given at least equal consideration to the insured’s interests b. has conducted a timely and thorough investigation c. has objectively evaluated the claim d. has made reasonable attempts to resolve or settle the claim; and e. has processed and handled the claim in a manner that was consistent with accepted or acceptable claims practices or standards or with insurance regulations
E. Punitive damages
1. If the jurisdiction has determined that a bad faith cause of action sounds in tort, the insurer can be liable for extra-contractual damages, including punitive damages
2. Courts have utilized the following standards to justify the imposition of punitive damages: a. insurer’s conduct was intentional b. insurer’s conduct was without reasonable basis
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DRAFT c. insurer’s conduct was egregious in nature d. insurer’s conduct was wanton or willful
F. Costs and cost-shifting
1. Attorneys’ fees and costs may be available in bad faith actions, either under the common law or by statute. See, e.g., 42 PA. Cons.
Stat § 8371(3) (“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may …[a]ssess court costs and attorney fees against the insurer.”)
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