Excepting death and taxes, there are no sure things. But there are plenty of near – sure things and fat pitches in life, and summary judgment motions by insurers in bad faith cases is one of those things. Insurers should be filing and winning more of them. In this post, we undertake a brief review of why more summary judgment motions should be filed by insurers in bad faith cases. In the next post, we will look at how such motions can be best positioned to win.
But first, why should more summary judgments be sought in bad faith cases?
The Burden of Proof Is Exactingly High, Favoring The Insurer
In most if not all states, bad faith must be proved by a hybrid burden of proof which lies somewhere above preponderance of the evidence, and below beyond a reasonable doubt. This burden of proof applies as much to the summary judgment stage as it does to the trial of a bad faith case, and it can be used offensively to argue that no genuine issue of material fact can be established.
In my experience, the burden of proof should be stressed more by insurers at the summary judgment stage than it is. It is a great reminder to the judge to properly orient his frame of reference when reviewing the motion.
Genuine, Bona Fide Bad Faith Is Rare
Don’t believe what the Plaintiff’s bar says. Claims adjusters and claims departments simply do not benefit from intentionally and unfairly handling claims, and the list of why they do not benefit is a long one. Most people want to do a good job and do it fairly. Even the ones that don’t seek to avoid unwarranted attention, and don’t want to get fired. Nobody in a claims department wants their name associated with a bad faith suit, to be drug into interviews and depositions, or to be responsible for legal expense and risk.
I have written on this subject before, but in nearly 30 years of practice I can count the number of instances of claims handling with malice aforethought on a single hand — half of a single hand, actually. It just does not happen.
Do mistakes happen in claims handling? Of Course. Negligence? Occasionally. But bad faith law allows safe harbor for both, and neither statutory nor common law bad faith claims are designed to punish an insurer for either mistakes or negligence.
Bad Faith Rulings Are Inherently Ideal For Judges To Make
Nearly ten times out of ten, the proper adjudication of a bad faith case can be made following discovery, when a judge can look at the facts of the specific claims handling, and apply the particular bad faith law of the jurisdiction to serve a gate keeping function. If a judge finds a reasonable basis for handling the claim at issue, the inquiry is over. And only in the rarest of cases will a judge genuinely believe that an insurance bad faith case can go to trial.
Summary judgments for insurers in bad faith litigation are fat pitches in which the odds favor the insurer. In the next post, we will examine how to maximize that advantage, and win more summary judgment motions.
For more information on how to file and win more summary judgments in coverage and bad faith cases, and to reduce your legal expense while doing it, reach me at firstname.lastname@example.org or 717-731-4800.