Insurance Bad Faith

• Author: Kevin R. Culhane
• Pages: 295-364

7-295

Chapter 7

Insurance Bad Faith

§700 Elements of Plaintiff’s Cause of Action

§710 Definitions

§720 Basic Insurer Information

§730 Basic Policy Information

§740 First Party Cases

§750 Third Party Cases – Excess Liability

§760 Third Party Cases – Duty to Defend

§770 Claims Under Unfair Practices Act

§780 Due Diligence in Preparation of Response

§785 Deposition Checklists

§700 Elements of Plaintiff’s Cause of Action

§701 Breach of Covenant of Good Faith and Fair Dealing

§701.1 Formation of Insurance Contract

§701.2 Conduct Violating the Covenant

§702 Statutory Liability – Violation of Unfair Practices Act

§703 Additional Causes of Action

§710 Definitions

§720 Basic Insurer Information

§721 Identification

§722 Business Format

§723 Qualification Data

§730 Basic Policy Information

§731 Issuance

§732 Individuals Involved

§733 Persons Entitled to Policy Benefits

§734 Persons/Entities Purchasing Policy

§735 Coverages and Limits

§735.1 Automobile

§735.2 Property, Casualty and Liability

§735.3 Life Insurance

§735.4 Disability

§735.5 Health

§736 Effective Date

§737 Lapse, Rescission, and Cancellation

§738 Identification of Endorsements

Model InterrogatorIes 7-296

§740 First Party Cases

§741 Receipt of Claim for Policy Benefits

§742 Cause for Withholding Policy Benefits

§743 Cause for Non-Coverage Claim

§744 Cause for Partial Payment

§745 Cause for Delay in Payment

§746 Disability Policies/Denial of Claim

§746.1 Claim of Total Disability

§746.2 Substantial and Material Duties of Employment

§746.3 Partial Disability

§746.4 Pre-existing Illness

§747 Medical Insurance Policies – Reasons for Non-payment

§748 Insurer Claim Investigation

§748.1 Establishment of Claim File

§748.2 Written Standards

§748.3 Establishment of Loss Reserve

§748.4 Nature and Extent of Investigation

§748.5 Experts Utilization

§748.6 Investigation by Others

§748.7 Insured or Claimant Conduct Regarding Investigation

§748.8 Claim Evaluation

§748.9 Persons Involved in Claim Evaluation

§749 Delay in Processing and Investigation

§749.1 Delay in Payment

§749.2 Delay in Communication With Insured

§750 Third Party Cases – Excess Liability

§751 Opportunity to Settle Within Policy Limits

§752 Nature and Extent of Settlement Negotiations

§753 Reasons for Rejection of Settlement Demand

§753.1 General Information

§753.2 Likelihood of Excess Judgment

§753.3 Insured’s Conduct

§753.4 Coverage Disputes

§753.5 Existence of Competing Claims

§753.6 Ambiguous Settlement Proposal

§754 Communication of Offer to Insured

§755 Failure to Investigate

§756 Claim Evaluation

§757 Advice of Counsel

§758 Offer Exceeding Policy Limits

§760 Third Party Cases – Duty to Defend

§761 Contractual Duty to Defend

§761.1 Notice of Claim

§761.2 Denial of Coverage

§761.3 Demand to Provide Defense

§762 Decision to Deny Defense

§763 Factors Considered in Decision to Refuse Defense

§764 Persons Involved in Evaluation of Duty to Defend

§765 Denial Based on Claim of Non-coverage

§766 Investigation of Facts Relating to Coverage

§767 Adequacy of Defense and Selection of Counsel

§768 Retention of Consulting Experts

§769 Insured’s Conduct

§769.1 Stipulated Judgment Following Failure to Defend – Defendant to Plaintiff

§770 Claims Under Unfair Practices Act

§771 Misrepresentations to Claimants

§772 Adoption and Implementation of Investigation and Processing Standards

7-297 InsuranCe bad faIth

§773 Failure to Communicate With Claimant/Insured

§774 Failure to Settle

§775 Claims for Similar Conduct

§776 Comparative Fault on Part of Insured/Claimant

§777 Advice of Counsel Defense

§778 Damages, Investigations, and Related Issues

§778.1 Claim of Emotional Distress Damages – Defendant to Plaintiff

§778.2 Claim for Payment of Attorney’s Fees in First Party Cases – Defendant to Claimant

§778.3 Economic Damages Following Insurer’s Refusal to Settle – Defendant to Plaintiff

§778.4 Claims for Similar Conduct

§780 Due Diligence in Preparation of Response

§785 Deposition Checklists

§786 Deposition of Defendant’s Person Most Knowledgeable – First Party Bad Faith

§786.1 General Background

§786.2 Basic Facts Relating to Defendant Insurer

§786.3 Basic Policy Information

§786.4 Denial or Withholding of Policy Benefits

§786.5 Claim Investigation and Processing by Insurer

§786.6 Facts Pertaining to Incident Giving Rise to Insurance Claim

§786.7 Statements by Parties, Witnesses Regarding Incident Giving Rise to Insurance Claim

§786.8 Surveillance Conducted by Opposing Party re Underlying Incident

§786.9 Statements by Parties, Witnesses Regarding Insurance Claim

§787 Deposition of Defendant’s Person Most Knowledgeable – Third Party Bad Faith

§787.1 General Background

§787.2 Basic Facts Relating to Defendant Insurer

§787.3 Basic Policy Information

§787.4 Third Party Bad Faith – Failure to Defend

§787.5 Third Party Bad Faith – Failure to Indemnify

§787.6 Claim Investigation and Processing by Insurer

§787.7 Facts Pertaining to Incident Giving Rise to Insurance Claim

§787.8 Statements by Parties, Witnesses Regarding Incident Giving Rise to Insurance Claim

§787.9 Statements by Parties, Witnesses Regarding Insurance Bad Faith Claim

§787.10 Surveillance Conducted by Opposing Party re Facts of Insurance Bad Faith Claim

§788 Deposition of Plaintiff – First Party Claim

§788.1 Defendant – General Background

§788.2 Basic Policy Information

§788.3 Plaintiff’s Contentions/Facts Regarding Incident Giving Rise to Insurance Claim

§788.4 Plaintiff’s Contentions Regarding Denial or Withholding of Policy Benefits

§788.5 Plaintiff’s Contentions/Facts Regarding Claim Investigation by Insurer

§788.6 Plaintiff’s Contentions/Facts Regarding Reasonableness of Denial

§788.7 Damages in First Party Cases

§788.8 Statements by Parties, Witnesses Regarding Incident Giving Rise to Insurance Claim

§788.9 Surveillance Conducted by Opposing Party Regarding Underlying Incident

§788.10 Statements by Parties, Witnesses Regarding Insurance Claim

§788.11 Surveillance Conducted by Opposing Party Regarding Facts of Insurance Claim

§789 Deposition of Plaintiff – Third Party Claim

§789.1 Plaintiff – General Background

§789.2 Basic Policy Information

§789.3 Third Party Bad Faith

§789.4 Damages in Failure to Defend Cases

§789.5 Third Party Bad Faith – Failure to Indemnify

§789.6 Damages in Third Party Case

§789.7 Statements by Parties, Witnesses Underlying Loss

§789.8 Surveillance Conducted by Opposing Party Re: Underlying Incident

§789.9 Statements by Parties, Witnesses Regarding Insurance Claim

§789.10 Surveillance Conducted by Opposing Party Re: Facts of Insurance Claim