In Part I of this post, we examined the reasons why motions for summary judgment should be filed and won more often by insurers in bad faith litigation. In Part II, we examine how to improve the odds which already start out in an insurer’s favor in the summary judgment arena.
You Had One Job
The first rule of filing and winning more summary judgments in bad faith litigation is to do what the summary judgment rules ask be done: demonstrate that there is no genuine issue of material fact remaining for trial. The operative word in that requirement is “demonstrate.”
Summary judgments are won and lost based upon the amount of sweat and toil the moving lawyer puts into the facts which will appear in the summary judgment motion and briefing. The record in the case, most plainly discovery, has to be combed through to cull all documents, all testimony, all evidence which demonstrates that the insurer handled the claim in question reasonably.
We do not say that it must be shown the insurer handled the claim “correctly” here, because as discussed in the prior post, insurers have a right to be wrong, as long as they are not unreasonably wrong. By all means, however, if you can demonstrate to the reviewing court that the insurer handled the claim both reasonably and correctly, that should be done. Reasonable and correct is always better than reasonable and incorrect, although either can win an insurer a summary judgment in a bad faith case.
The main jobs in developing the record for a summary judgment motion are specificity and thoroughness. Every assertion made in support of the motion should be supported with some item from the record.
Be A Beast Of Burden
In Part I of this post, we reviewed the burden of proof in bad faith cases, often referred to as “clear and convincing evidence,” which favors insurers, and makes the job of a bad faith plaintiff an uphill battle. It is a burden of proof which should be stressed throughout the summary judgment submissions because some judges tend to forget that the burden applies at the summary judgment stage , and it does not hurt to remind those judges who do remember.
If the summary judgment opinion and ruling an insurer’s lawyer gets back following the motion mentions that the plaintiff’s burden at summary judgment is one of clear and convincing evidence, then the insurer’s lawyer has done her job in sufficiently arguing it. She has also increased the chances that summary judgment is going to be granted for her client.
Tell A Story, And Trace The Thought Process
In my practice, I defend professional liability actions of all kinds from time to time. There is an important lesson in defending those cases which translates very nicely to summary judgment motions in bad faith cases: telling a story, and tracing a thought process.
Since the focus of any bad faith case is the nature and quality of how the insurance claim at issue was handled, the successful insurers in summary judgment motions are the ones which walk the presiding judge through the claims handling process, demonstrating what was done, when it was done, why it was done, and how the insured’s interests were considered and not unfairly compromised. If the presiding judge can understand the how and why of the claims handling process, the burden and proof and the case law will very likely carry the judge where insurers need him to go. The judge is equipped to see that while the insured may not have agreed with the claims outcome, the insurer came by that outcome honestly, sincerely, and reasonably. And if an insurer can get a judge to go there, they will win summary judgment in their bad faith case.
As we did in closing out Part I of this post, we close here by saying again: summary judgments for insurers in bad faith litigation are fat pitches in which the odds favor the insurer. If the motion and briefing process are executed with the above in mind, the chances of success are substantial.
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 email@example.com or 717-731-4800.