Litigation and Prevention of Insurer Bad Faith, 2d. ed.

• Author: Kornblum, Goy O.

Dennis Wall's second edition of Litigation and Prevention of Insurer Bad Faith is a must for an insurance litigator's library. In this revised version of the first edition, which was published in 1982 and since supplemented, the author, who is a member of the International Association of Defense Counsel, expands the main volume to more than 500 pages of text and citations, which total in the thousands.

The book contains 14 chapters covering both first- and third-party bad faith claims; defenses; primary, excess and reinsurer relationships; discovery; and damages. It also has appendices of letters, forms and sample jury instructions. However, I found these much less helpful than the text and the many citations to cases and secondary sources that serve as a basis for more extensive research. In short, the value of this work is as a resource to aid in developing ideas and theories and in providing assistance in finding support for them.

Some useful features are missing, but some of what is missing is simply not part of what this book offers. For example, it is not a trial practice book and does not purport to be. This fact is obvious from its content, which is avail able by merely screening the table of contents. There are a few segments discussing motions, and the appendices offer some sample jury instructions, but anyone interested in how to try a "bad faith" case should look elsewhere. This is not a criticism; my sense is that Wall does not intend the book to be a trial lawyer's guide.

Ticklish instructions

While the appendices, I would be very careful in using them. I found the jury instructions to be cumbersome, wordy and not well crafted. They are too long, and they merge several concepts into one instruction, rather than submitting separate instructions on each legal point. This raises the prospect of having the entire instruction rejected. See Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 30 Cal.Rptr. 64 (Cal.App. 1964). Courts also have criticized "formula" instructions that direct the jury to return a verdict in favor of a party if it decides certain facts are true. See Bertero v. National General Corp., 529 P.2d 608 (Cal. 1974).

The first two chapters, which constitute the introduction and the history and contrasting good faith requirements, cover 14 pages, but they do not give the full explanation of how the tort of insurance bad faith developed from the early cases through one of the later state supreme court...