Most of us define insurance by what it does for us under the policies we have purchased.  If asked “what is insurance?,” most people would say “it pays for damage to my car” or “it pays my medical bills if I get sick” or something to that effect.  These are good working definitions, but a closer look at what the nature of the insurance policy really is can be instructive.  One relatively simple definition states:

Insurance is a contract, represented by a policy, in which an individual or entity receives financial protection or reimbursement against losses from an insurance company. The company pools clients’ risks to make payments more affordable for the insured.  Insurance policies are used to hedge against the risk of financial losses, both big and small, that may result from damage to the insured or her property, or from liability for damage or injury caused to a third party.

It’s easy to see from this definition that an insurance company’s business model involves it taking (and managing) risks.  It agrees to pay losses under the contract in return for a premium from the insured, with the hopes that it will take in more premium dollars from its pool of policyholders than it will have to pay out on clams.  Another key aspect of an insurance company’s business model is to make money investing the premium money it takes in before it has to pay that money out on claims.  This will be the subject of a later post.

The insurance company is not guaranteed (nor does it have a right) to make a profit in its business.  If the company is smart and takes good risks, it can most definitely make a profit.  Many companies make huge profits (it’s easy to see this is true by checking their stock prices or imagining how much money they spend on all those TV ads).  But, if the company takes bad risks or is unfortunate enough to suffer big losses from a natural catastrophe (like the hurricanes we’ve seen so often recently), it might not make a profit in a given year.

Whether the insurance company makes a profit in a given year or not is not the policyholder’s problem.  The policyholder has bought with her premium money the promises of coverage the insurance company is selling.  Those promises include peace of mind, security and protection from financial harm if the policyholder is unfortunate to suffer a loss.  The insurance company has promised in the insurance contract (the policy) to pay covered claims, and they must live up to that promise regardless of whether doing so will adversely affect the company’s profitability.

One of the fundamentals of good faith claim handling is that an insurance company must never place its own financial interests ahead of its insured’s financial interests.  When an insurance company attempts to use its claims department as a profit center (by delaying, denying or underpaying valid claims to try to improve the company’s profitability),  it is in bad faith.

Unfortunately, all too often insurance adjusters, supervisors, managers and claim department executives lose sight of this bedrock principle.  When they do, and the policyholder suffers as a result, a bad faith lawsuit it likely to follow.

Policyholders don’t want insurance adjusters who don’t know what they’re doing handling their claims.  It wouldn’t be fair to the policyholder.  Adjusters can’t know how the insurance company they work for wants them to handle claims unless the company tells them.  Therefore, in order for policyholders to have their claims handled the way the insurance company wants them handled (hopefully in good faith), it is incumbent on an insurance company to put proper policies and procedures for claim handling in place.

The Oklahoma Unfair Claims Settlement Practices Act recognizes this fundamental truth.  That statute provides an insurance company must “adopt and implement reasonable standards for prompt investigations of claims…”  This is a well-known fact in the insurance industry.  As a result, it is industry standard for insurance companies to do so.  Commonly, insurance companies draft and disseminate a set of claim handling rules and guidelines to their adjusters, claim supervisors and claim management personnel.  These documents are put together in what is often called a “claim manual.”  In the old days, claim manuals could be found on adjusters desks in three-ring binders.  Now, in the “paperless” world, claim manuals are usually found on an insurance company’s intranet.  Adjusters and claim supervisory employees have access to the “electronic claim manual” on their company computers.  Insurance companies sometimes refer to their claim policies and procedures by other names (like “Best Practices” or “Claim Bulletins”) but regardless of what they call them, every insurance company must adopt “reasonable standards” for claim handling.

It only makes sense that when a policyholder finds herself in a bad faith lawsuit against an insurance company based on a claim the adjuster and/or supervisor handled the claim incorrectly in some way, the insurance company’s own internal rules and regulations will be highly important.

The policyholder’s attorney should always obtain the company’s claim manual in discovery and carefully measure the adjuster’s performance by the company’s own measuring stick as set forth in their claim manual.

Also, the policyholder’s lawyer should examine the company’s claim manual closely to make sure the policies and procedures contained there are in fact “reasonable.”  Many insurance companies have claim handling procedures in place that are very similar to one another, but sometimes a company will have overlooked something important that may become relevant in a bad faith case.

The moral of the story is the insurance company is required to establish fair claim handling rules for its adjusters, then to follow them when adjusting a claim.  If the company doesn’t do so, they will find themselves under criticism for it in a bad faith case.

As a policyholder who has experienced a loss, you might think it goes without saying that an insurance company must tell you all the coverages in place under your policy that might apply to your claim.  While insurance companies often do so, it is certainly not unheard of for an applicable coverage to be “overlooked.”  You might be surprised that sometimes a policyholder’s coverage under a policy is not disclosed, leading to a policyholder being harmed by not receiving all the policy benefits they paid premium for.  A bad faith case might ensue.

There is a statute in Oklahoma called the Unfair Claims Settlement Practices Act which outlines actions by an insurance company which are considered to be unfair to policyholders.  That law states it is an “unfair claim settlement practice” for an insurance company to fail to “fully disclose to first party claimants, benefits, coverages, or other provisions of any insurance policy or insurance contract when the benefits, coverages or other provisions are pertinent to a claim.”

Insurance companies know better than the vast majority of their policyholders what coverages the policyholder’s insurance policy contains. This is especially true with regard to coverages that are lesser known among the public.

For instance, if a policyholder is involved in a motor vehicle accident it is common for a layperson not to understand how and when uninsured/underinsured motorist (“UM”) coverage applies.  Sometimes the policyholder doesn’t even realize they have paid for UM coverage.  Many people think that only if the other party in the accident has no coverage whatsoever does UM coverage kick in.  This isn’t true. If the other party involved in an automobile accident has coverage, but not enough to compensate the policyholder for her damages, UM coverage kicks in.  Insurance adjusters know this fact very well. If a policyholder is involved in an accident and UM coverage even might apply, the adjuster must disclose that coverage to the policyholder. Sometimes this does not happen.

Another example is when a policyholder suffers a homeowners insurance loss and needs move out of his home for a time until it can be repaired. Most homeowners insurance policies contain what is called “Additional Living Expense” or “ALE” coverage. Under this coverage, the insurance company will pay for lodging (a hotel room, an apartment, even to lease a house under certain circumstances) for the policyholder and his family while the repairs are done. It sometimes happens that an insurance adjuster (who knows good and well that ALE coverage exists under the policy) will simply not mention it to the policyholder, which leaves the policyholder to either come out of pocket for expenses that should be covered under the policy or, if that is not an option for them, to live in a house that is not fit to be inhabited.

Insurance adjusters have tools at their disposal (including the powerful computer systems of the insurance companies they work for) to quickly and easily identify all coverages available to a policyholder that are potentially applicable to a claim. In order to meet the duty of good faith and fair dealing and avoid violating the Unfair Claims Settlement Practices Act, they must err on the side of informing the policyholder of all the coverages the policyholder may be able to take advantage of in a claim. This is only fair seeing is how the company understands how the policy works better than the policyholder and the policyholder has paid their hard-earned dollars in premium for every coverage the policy allows.

 

The answer to this question is not as simple as it might seem.   In fact, it can be downright confusing.  I’ll try to explain.  First, the easier part.  An insurance company owes its own policyholder a duty of good faith and fair dealing and all claims asserted by the policyholder.  This kind of claim it is called a “first party claim.”  A first party claim derives its name from the fact that an insured is the “first party” to the insurance contract/policy and the insurance company is the “second party” to the contract.  First party claims can include uninsured motorist claims, auto property damage claims, med pay claims, homeowners claims, health insurance claims, life insurance claims, claims for defense and indemnity and so on. As long as the policyholder is making a claim with his or her own insurance company for coverage under a policy for which the policyholder paid premium, the claim is a “first party” claim and a duty of good faith and fair dealing applies.

Now for the part that seems counter-intuitive to many people.

If a person is making a liability claim against another party (be it an individual or a company – like a trucking company, a retail store, a product manufacturer, etc.) alleging that other party caused him harm by its conduct, such a claim is a “third-party claim.”  In that circumstance, the injured person is not a party to the insurance contract at issue and is therefore referred to as a “third party.”  Under Oklahoma law, there is no duty of good faith and fair dealing owed by an insurance company on a third-party claim. In other words, someone else’s insurance company does not owe a duty of good faith and fair dealing to a person who is not insured under a policy issued by that insurance company. Note there are a few exceptions to this rule, not least of which is a situation under an uninsured motorist insurance policy where passengers in a vehicle being operated by someone with  uninsured motorist coverage are also covered under that person’s policy despite not having paid premium.

Perhaps the best example of a situation to illustrate this concept is a simple automobile accident.

If John and Mary have an accident at an intersection and there is a dispute between them about who ran the stop sign and because the cars to crash into each other, and number of different insurance claims might arise. For instance, both John and Mary presumably have their own automobile insurance policies that would pay for the damage to their vehicles. Each of those claims by John and Mary with their own insurance companies would be first party claims. If John and Mary each have med pay coverage, each of those claims by John and Mary against their own insurance companies would be first party claims. Let’s say Mary has suffered injuries in the accident that caused her to incur $50,000 worth of medical bills (this is not an uncommon occurrence). Let’s say that John carries the statutory minimum amount of liability insurance coverage on his policy of $25,000. Also, let’s say Mary has uninsured motorist (UM) coverage on her policy of $100,000.

Mary asserts a liability claim against John. She also asserts a UM claim against her own insurance company. John’s insurance company can treat Mary however they want without any recourse for Mary against that insurance company for bad faith. The reason is Mary’s claim against John is a third-party claim. John’s insurance company can conduct as poor an investigation as they want, can delay resolution of the claim as long as they want, can lowball Mary on the offers they make to settle her claim all they want and Mary has no recourse for bad faith directly against them. Her only recourse would be to sue John.  If John’s insurance company acts unreasonably toward Mary and forces her to sue him, John may have a problem with that.  If so, he might have recourse against his own insurance company for bad faith as a result. He’s a first party with his own company.  Starting to make sense?  The type of case John might have in our example will be discussed in a later post.

For current purposes, under our example, Mary’s UM claim against her own insurance company is a first party claim. Mary’s insurance company owes Mary a duty of good faith and fair dealing and therefore has to conduct a full, fair and timely investigation, must make a fair and reasonable evaluation of the claim, cannot treat Mary as an adversary, cannot put its own financial interests ahead of Mary’s and so on. If Mary’s insurance company does so in violation of the duty of good faith, Mary has recourse against her insurance company in the form of a bad faith case wherein she can recover above and beyond the amount of insurance coverage she paid premium for.

It is imperative for policyholders to know their rights and be familiar with the responsibilities insurance companies owe them when they are injured in an accident or have suffered some other insured loss.

The best way to handle questions on this front is to consult with an attorney who is familiar with the concepts dealt with here.  Untangling what claims arise out of even a relatively simple auto accident can be a daunting task, especially when a policyholder is in a difficult situation after a loss of some kind.

Remember the awful accident the “Saturday Night Live” and “30 Rock” comedian involving Tracy Morgan?  As you might imagine, it led to high-stakes lawsuits by the people injured, but what you might not know is it also led to insurance bad faith litigation between Wal-Mart and its insurance companies.

The accident happened on a highway in New Jersey back in June, 2014.  Morgan was riding in a “limo van” with friends and associates when the van was rear-ended at high speed by a Wal-Mart truck.  Six vehicles and twenty-one people were involved in the accident.  A comedian friend of Morgan’s was killed, and Morgan suffered severe injuries, including being in a coma for a few weeks, a brain injury and a number of broken bones.  The NTSB investigated the accident and ultimately concluded the Wal-Mart truck driver was traveling 20 mph over the speed limit, was seriously fatigued after having driven much more on the day of the accident than was allowed with far too little sleep.  The driver was charged with vehicular homicide and later pled guilty.

Morgan and his deceased friend’s family brought lawsuits against Wal-Mart.  Those suits implicated insurance coverage Wal-Mart had in place with Liberty Mutual and its subsidiary company, Ohio Casualty.  Wal-Mart settled the cases brought against it out of its pocket (the amounts of the settlements are confidential and have not been disclosed, but media reports indicate they may have been in excess of $90 million), then sought to be reimbursed by its insurance companies for the amounts it paid the claimants.  Apparently, Wal-Mart says it put the insurance companies on notice of the settlement negotiations with Morgan and the others, the insurance companies disagreed with the amounts of the settlements, and Wal-Mart went ahead and paid the money itself to settle.

According to media reports, the insurance companies took issue with reimbursing Wal-Mart because they claimed Wal-Mart paid too much money to settle with the claimants.  It appears the insurance companies pointed out that Morgan had been seen on television hosting and making guest appearances on TV shows within a year after the accident, indicating he wasn’t injured as bad as he said.  Morgan stated publicly he thought the settlement was fair.

Wal-Mart and Liberty Mutual/Ohio Casualty sued each other.  Wal-Mart claimed the insurance companies acted in bad faith by not consenting to the settlements and not paying the settlement amounts.  A Wal-Mart spokesman was quoted as saying:

This is no different than any individual who holds an insurance policy, makes a claim for a covered loss, and then is told by the insurance company that despite the existence of coverage, they don’t intend to pay.”

The insurance companies claimed Wal-Mart paid too much to settle the cases in an attempt to force the insurance companies to pay the full freight of the liability, when in fact much of the exposure to Wal-Mart was for punitive damages, which were not covered under Wal-Mart’s policy with the insurance companies.  The insurance companies were seeking to question Morgan and another injured person, presumably to attempt to show they were not injured badly enough to justify the size of the settlements paid by Wal-Mart.

Last month, the lawsuits back and forth between Wal-Mart and the insurance companies were settled and dismissed.  The terms of that settlement are also confidential.

This story goes to show even an entity as big and powerful as Wal-Mart can be the victim of what it believes as unfair treatment by an insurance company.  Wal-Mart’s insurance companies owe it a duty of good faith just like a normal person’s insurance companies do.

 

 

Most of us are well aware of the basic provisions of our automobile insurance policies.  For example, we know that if we back into something in a parking lot and damage our bumper, insurance will fix it.  We also know that if we have an accident that’s our fault and cause damage to someone else, or insurance covers it.  What most people are not as familiar with is what insurance adjusters and lawyers refer to as “Med Pay” coverage.  Not everyone has elected to pay for this coverage, but if Med Pay exists on your policy it can be a very important and beneficial coverage. You need to know if you have “Med Pay” when you are involved in an accident.

A typical Med Pay provision in a standard auto policy generally provides the insurance company will pay (subject to some exclusions, of course) reasonable medical expenses for necessary medical services because of bodily injury sustained by an insured person, including family members and others in your car.  This can be a very valuable coverage, depending on the policyholder’s circumstances following an accident.

While this coverage may seem fairly straightforward, bad faith litigation may arise from it.  Insurance companies are only obligated to pay “reasonable” and “necessary” medical bills under the Med Pay provision of the policy.  The questions of what medical treatment is “necessary” and what medical bills are “reasonable” can lead to disputes between insurance companies and policyholders.  After an accident, a policyholder will often receive treatment from his doctors and incur medical bills as a result and make a claim under his “Med Pay” coverage, only to find his insurance company claims the treatment and/or bills are not “reasonable and necessary.”

As in other claim situations, the insurance company has a duty of good faith in handling Med Pay claims.  So, the insurance company has to have a good faith basis for denying payment of Med Pay benefits.  The insurance company has to investigate fully and fairly and evaluate the evidence even-handedly.  Unfortunately, some insurance companies have attempted to deny and/or reduce payments under the Med Pay coverage by utilizing doctors and/or nurses (who often market themselves as cost savers to the industry) to evaluate the “reasonableness” and “necessity” of their policyholders’ Med Pay claims.  When done inappropriately, this practice amounts to an effort to create the appearance of a “legitimate dispute” to avoid bad faith liability.  If bad faith litigation results in a situation like this, the focus is often on the qualifications of the doctors/nurses hired by the insurance company, the quality of their analysis and the evidence of the insurance company’s cost-saving motive in sending claims to such doctors.

Insurance companies are entitled to analyze claims closely, including using outside experts if needed, but they are not entitled to manufacture disputes using biased experts in an effort to save money they otherwise owe their policyholders.  The way some insurance companies deal with Med Pay claims crosses this line.

What happens in a situation where a policyholder (an individual or a business) is alleged to have caused damage to someone else?  What if there is an auto accident and the other driver claims the policyholder caused it?  Or what if a customer comes in to the policyholder’s place of business, trips and falls and is injured?  This is where a policyholder’s “liability coverage” comes into play.  When there is such coverage, the insurance company owes both a “duty to indemnify” (pay the claim against the policyholder if it is valid) and a “duty to defend.”

There are several aspects of an insurance policy commonly thought of as “coverage” provided to the policyholder.  Under an auto policy, if your car is damaged there is “coverage” to repair or replace it.  Under a homeowners policy, there is “coverage” to fix your roof after a hailstorm.  Most people don’t think of the insurance company’s obligation to defend them as part of the “coverage” because most folks never get sued.  This can be a very valuable policy benefit if a policyholder is unfortunate enough to have a lawsuit filed against them.

When the “duty to defend” is triggered, the insurance company is required to hire a lawyer for the policyholder, at the insurance company’s expense, to defend the lawsuit.  However, not every claim that might be made against a policyholder is covered.  If there is no coverage under the insurance policy for the claim made against the policyholder by the allegedly injured person, there is no duty to defend.

The rub comes when it is not entirely clear there is or is not coverage for the claims being made against the policyholder.  Oklahoma law provides the insurance company’s “duty to defend” is triggered when there is the potential for coverage for the claims against the policyholder.  The question of whether there is the potential for coverage must be answered by looking beyond the “four corners” of the lawsuit filed against the policyholder to all of the facts of the allegations against the policyholder.

If an insurance company denies it has a duty to defend a lawsuit against a policyholder, it has concluded there is not even the potential for coverage under the facts of the claim.  This can be dangerous territory for an insurance company.  If the policyholder takes issue with the insurance company’s position on coverage (and thus the duty to defend) the insurance company’s investigation and evaluation of the coverage dispute could be subject to scrutiny in a bad faith case.   The insurance company must be able to prove it had a good faith basis for its coverage analysis and decision.

There has been a good deal of bad faith litigation in Oklahoma involving denials by insurance companies of their “duty to defend.”  These can be highly technical cases involving interpretation of arcane insurance policy provisions.  However, if it is determined the insurance company breached its duty to defend in bad faith, the policyholder may recover the out-of-pocket cost they incurred in hiring a lawyer on their own and any resulting financial impact (and other compensatory damages for bad faith) they suffered.  Punitive damages may also be in play.

Uninsured/Underinsured motorist or “UM” coverage is one of the most important coverages a person can buy.  State law requires all drivers to carry liability insurance, which is there to pay for property damage and personal injuries caused by the policyholder.  However, plenty of drivers violate that law every day and operate vehicles on the roads all over our state without carrying liability insurance at all.   Also, many people carry only the state-mandated minimum amount of liability coverage of $25,000.00.  If you are unfortunate enough to be involved in an accident caused by an uninsured driver or one who does not have enough liability coverage to compensate you for all your damages, UM coverage becomes critically important.

UM coverage is not mandatory under Oklahoma law.  You can choose to buy it or choose to reject it.  Your insurance company is required by law to offer UM coverage to you in the same amount as your liability coverage.  If you choose not to buy UM or to buy it in an amount less than your liability coverage, you must do so in writing on a statutory form your insurance agent provides you to sign.

Here is an example of how UM coverage might work in a common situation.  A UM policyholder is involved in an accident with a driver who has $25,000 in liability limits.  The UM policyholder is seriously injured, and ends up with medical bills of $50,000 from the accident.  The UM policy has $100,000 in policy benefits available to the policyholder.  The policyholder makes a claim to the UM carrier.  The UM carrier then has to fully and fairly investigate and even-handedly evaluate the claim.  To do so, the UM carrier must determine who was at fault for the accident (UM benefits are only available to the policyholder if the accident was the uninsured motorist’s fault) and the amount of the policyholder’s damages (like medical bills, lost wages, physical and mental pain and suffering, etc.)  If the UM carrier determines the accident was the policyholder’s fault or that the policyholder’s damages do not exceed the $25,000 in liability limits of the other driver, they will deny the claim.

There has been a great deal of bad faith litigation involving UM claims in Oklahoma.  The allegations by policyholders have ranged from unreasonable delay, to improper investigation, to under-evaluation of the policyholder’s damages, to reliance by the insurance company on biased experts, to improper policy langauge interpretation and so on.  A UM claim can be complicated (the adjuster must determine who caused the accident and the nature/extent of the policyholder’s damages – both questions can be nuanced and difficult) and there is a great deal of room for disagreement between the insurer and the policyholder.  An insurance company must take its duty of good faith very seriously and be proactive in its handling of a UM claim, or allegations of bad faith by the policyholder may very well follow.

There are three basic categories of damages a policyholder can recover if she wins a bad faith case.  Bad faith cases can be worth significant amounts of money.  In fact, a meritorious bad faith case can result in far more money being paid to the policyholder than what she was entitled to recover under the insurance policy in the first place.

The first category of damages a policyholder can recover is “contract” damages.  This is the amount of money the insurance company should have paid the policyholder under the insurance contract (the insurance policy) in the first place if it had not acted in bad faith.  For example, if the insurance company properly owed its policyholder the policy limits of $25,000.00, but denied the claim in bad faith, the insured is entitled to recover the $25,000.00.

The second category of damages is “compensatory damages for bad faith” or “bad faith damages.”  The policyholder who can prove bad faith is entitled under Oklahoma law to recover money from the insurance company, above and beyond the “contract” damages under the policy.  These damages are to compensate the policyholder for the harm done to them as a result of the insurance company’s  bad faith conduct.  If the evidence supports it, the jury in a bad faith case is allowed to award the policyholder monetary damages for things like:  financial losses, embarrassment and loss of reputation, and mental pain and suffering.  (See Oklahoma Uniform Jury Instruction No. 22.4 – it should be noted the Comment to this OUJI allows it to be altered by the trial court to fit the evidence of the policyholder’s damages).   If the claim denial by the insurance company caused, for example, the policyholder to lose money in their business, have their credit adversely affected and suffer mental upset, the jury may award the policyholder money for these things at trial.

The third category of damages is “punitive damages.”  Punitive damages are designed to punish a defendant in a lawsuit, if the defendant’s conduct is deemed sufficiently improper.  These damages are not designed to compensate the policyholder, but instead to deter the defendant and others from engaging in the punishable conduct in the future.  In a bad faith case, punitive damages may be awarded by the jury to make an example of the defendant insurance company so that they refrain from the same bad faith conduct in the future, and to send a message to the insurance industry that the bad faith conduct being punished is unacceptable.  Punitive damages can be awarded in addition to “contract” damages and “compensatory damages for bad faith.”

In theory, the law on damages in a bad faith case serves as a check against insurance companies denying claims without properly investigating, evaluating and paying them fairly, if owed.  If there was no monetary remedy for compensatory damages (and, in the right circumstances, punitive damages), insurance companies could deny claims in bad faith with the only downside to them being the policyholder recovering what was owed under the policy in the first place.

Not all bad faith cases filed are meritorious.  However, the ones that are can serve the valuable function of leveling the playing field between policyholders and the insurance industry.

The “legitimate dispute” defense is asserted in many, if not most, bad faith cases.  As noted in a previous post, using this defense, insurance companies often argue there is a “legitimate dispute” with the policyholder about the insurance claim in question, and there can therefore be no bad faith liability.  Policyholders often argue in response that the dispute is not “legitimate” but instead based on an improper investigation, skewed evaluation of the issues, biased expert analysis, etc.

In the recent case of Falcone v. Liberty Mutual Insurance Co., the Oklahoma Supreme Court took on the “legitimate dispute” issue in the context of an uninsured motorist (“UM”) claim.  In Falcone, the policyholder, Malinda Falcone, was injured in an automobile accident when an uninsured driver ran a stop sign and crashed into the vehicle in which she was riding.  Ms. Falcone was taken to the emergency room at OU Medical Center.  There, the ER doctors transferred her to the “Level 2” trauma center at the ER.  The total medical bill from OU Medical Center submitted to the UM carrier (Liberty Mutual) was $47,203.00 (including $24,420.25 for the Level 2 ER).  The total medical bills from all providers were $67,098.23.  Ms. Falcone had $100,000.00 in UM coverage available to her.

Liberty Mutual took issue with the amount of the ER bill, and had the medical records reviewed by two out-of-state “utilization review” doctors, both of whom gave the opinion that Ms. Falcone did not need to go to the Level 2 trauma ER.  The doctors also took issue with specific treatment, including CT scans.  Liberty Mutual then offered significantly less than its UM limits to settle the claim.  Ms. Falcone refused to settle for less than her policy limits and filed a bad faith lawsuit against Liberty Mutual.

After the suit was filed, Liberty Mutual paid its $100,000.00 policy limits.  Then, Liberty Mutual moved for summary judgment, asking the trial judge to find as a matter of law there was no bad faith.  The trial judge granted that motion, and Ms. Falcone appealed.  The Oklahoma Supreme Court unanimously overturned the summary judgment in favor of Liberty Mutual, finding it is up to the jury to determine “whether a lack of good faith is shown” by Liberty Mutual’s conduct.

Justice Gurich wrote a separate concurring opinion (with Justice Reif joining her) stating in her opinion Liberty Mutual committed bad faith as a matter of law.  Justice Gurich opined the case should be remanded to the trial court with instructions to submit the case to the jury only for a determination of whether Ms. Falcone was entitled to actual and punitive damages.  The concurring opinion was critical of Liberty Mutual’s reading of its policy language.  Further, the concurring opinion also stated:  “The very act of using the utlization reviewers as pretext to deny payment of the emergency room bill in this case is bad faith.  Liberty Mutual had no justifiable reason for withholding payment under the policy.”

By way of this opinion, the Oklahoma Supreme Court has reinforced the principle that a bad faith case in which the insurance company relies on the “legitimate dispute” defense should be decided, at least in most cases, by a jury – not on summary judgment.  As a result, lay juries will continue to most often be the arbiters of whether an insurance company’s adverse claim position constitutes a “legitimate dispute” or not.  Policyholders and their lawyers are likely pleased with this result.