Bad Faith Basics

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“Quality Assurance” or “QA” is a familiar concept in lots of industries (like manufacturing for example), and the insurance industry has widely implemented QA operations in their business as well.  Insurance companies say they want their adjusters to handle policyholders’ claims in a “quality” fashion.  To be sure adjusters are doing so, insurance companies use their QA departments to “audit” claim files handled by adjusters.  In theory, these audits compare the way actual claims have been handled to the “best practices” the insurance companies have implemented for quality claim handling.  In other words, the company sets forth “quality” guidelines for claim handling and then comes in behind adjusters after claims have been handled, audits the claim files and gives the adjusters quality “scores” or “grades.”

All of this sounds good.  The whole “QA” concept is something the management of an insurance company can easily get behind.  I mean, who’s against “quality,” right?  Unfortunately, in my experience, this is not exactly how things go in the real world.

In practical terms, all too often, insurance companies use the “QA” system as the “stick” in the carrot-and-stick equation mentioned in my earlier post.  While bonus compensation based on company profitability is the carrot, the results of a QA audit are often used to smack the adjuster who is paying too much on claims.

Put yourself in an adjuster’s shoes.  You handle and settle tons of claims, then a QA “auditor” comes along to second-guess your work.  Whether you score well on your QA audit or not will have an impact on your employee performance evaluation, including whether you get a raise or a promotion.  So, it’s only natural that you want to score highly on the audit.  If you want to score highly, you obviously want to know how the audit is being graded so you can handle claims in the way that scores the best.

My experience is that insurance companies often aggressively use their QA audits to discourage what auditors describe as “overpayments.”  In other words, one of the things a QA auditor looks at is the amount of money paid out by an adjuster on a claim and judges whether that amount was too low, just right or too high.  If the auditor concludes there have been “overpayments” that reflects poorly on the adjuster’s QA report and ultimately on the adjuster’s employee performance evaluation.  Companies often track, tabulate, categorize and analyze “overpayments” and the reasons they believe such payments occur.

On the other hand, oftentimes, companies do not track, tabulate, categorize and analyze “underpayments” to policyholders and the reasons they occur.  Instead, often, these “underpaid” claims are sent back to the adjuster to re-examine and pay if the adjuster deems it appropriate.  In my experience, “underpayments” do not work against an adjuster in her employee performance evaluation nearly as much as “overpayments” do.

Insurance companies say their QA departments are simply a way to ensure claims are handled correctly.  This is a worthy goal in theory.  But, when insurance companies use QA audits as a “stick” to enforce a culture of trimming claim payments in a chase for profits, it’s not really a quality assurance system at all.

As discussed in previous posts, an insurance company violates the duty of good faith and fair dealing when it attempts to alter the terms of its policy bargain with the policyholder by attempting to use its claim department as a profit center.

How does an insurance company get its claim personnel to buy in to the idea they should do everything they can to pay as little as possible on every claim, even where it means underpaying if necessary?  In my experience, the answer is:  by using both the “carrot” and the “stick.”

The delivery system for both the carrot and the stick is the employee performance review systems most every insurance company has in place.  I have reviewed hundreds of claim handlers’ personnel files over the years in bad faith cases I’ve handled.  The various insurance companies give their employee performance review systems different names, but clear patterns emerge.  Typically, every employee has a regular evaluation by their supervisor.  During these evaluations, the supervisor rates the performance of the employee as compared to goals that were set for the employee in the previous period.  The ratings are usually expressed on scale of “1” to “5”.  Goals for the coming period are also set.

Let’s start with the “stick” part of the equation.  Insurance companies often rate the performance of their adjusters who pay more on claims lower than those who pay less.  Performance ratings lead to pay raises, bonuses and advancement up the food chain of management in the company.  So, adjusters who pay more on claims are often shown the “stick” by not receiving the same positive treatment in their employment than stingier claim people.  As I’ll address in a later post, insurance companies often keep close track of an adjuster’s claim payment history, sometimes by way of a “quality assurance” file-auditing program.  Then, if that history is inconsistent with the company’s profit-making goals, it is used against the claim handler.

Now for the “carrot” aspect of the equation.

Insurance companies are sometimes quite creative in the way they reward their claim personnel for restrictive claim payment practices.  I’ve seen many manifestations of the same basic idea, in which the insurance company pays claim people more money based on the claim people helping the company make profits.

Some have “profit-sharing” plans for claim handlers, while others pay bonuses based on the results of contests in which adjusters compete to see who can save the company the most money on claims.  I will address some of these “carrots” in more detail in a later post.

Suffice to say, if the upper management of an insurance company encourages claim delays, denials or underpayments by the use of policies and procedures (like employee evaluation systems, illicit bonus programs or contests, etc.), the duty of good faith and fair dealing has gotten lost in the pursuit of the almighty profit.

As discussed in my last post, insurance companies (not policyholders) gamble when an insurance policy is issued.  The insurance company takes on the risk of paying claims under the policy in exchange for the policyholder’s premium.  The policyholder does the opposite of gambling.  She does away with (or at least protects against) the risk of an insurable loss.  The risks and rewards of the policy contract are put in place up front, at the beginning of the policy period.

Insurance company claim departments often profess a pro-policyholder claim handling philosophy.  I have heard this “philosophy” expressed many times, by many companies, for many years in many, many bad faith depositions as something like:  “We pay what we owe on claims.  Nothing more, nothing less.”  Obviously, this saying sounds fair and looks good written on the front page of an insurance company’s claim handling manual.  It also sounds pretty reasonable when an adjuster or supervisor says it in their deposition testimony in a bad faith case.

Unfortunately, as policyholders can learn when they make a claim, the old “we pay what we owe” mantra is too often little more than lip service.  Some claim departments generally and some claim offices specifically seem to conduct themselves contrary to the old slogan.

Some adjusters and their management people seem to take a great deal of pride or satisfaction from saving the insurance company every nickel they can squeeze out of a claim settlement, even when it means the policyholder suffers in the process and ends up underpaid.  Some claim personnel seem to believe there is no such thing as an underpayment of a claim, no matter what.

I am not of the belief that all claim people are evil or act with improper motives.  To the contrary, many are real professionals who take their duty of good faith owed to the policyholder seriously.  So how do certain insurance company claim departments earn their reputations as being prone to push the limits of good faith by consistently playing hardball with their policyholders?  How do companies get their claim personnel (some of whom really want to do right by their customers) to take such unyielding, hardline positions on claims?

The big picture answer is insurance companies often create the culture in their claim departments that those claim personnel who are the toughest, who take the most extreme positions, who pay the absolute least amount of money possible on every claim regardless of what’s fair, are treated more favorably than those who don’t do these things.  The insurance companies who do this are attempting to use their claim operation as a profit-making oufit or “profit center.”  In other words, they are attempting to alter the risk they took when they issued the policy or “rig the game” in their own favor.

No one can argue doing so is consistent with the duty of good faith and fair dealing.  The questions often in play in an insurance bad faith case are:  “Specifically how does an insurance company create a ‘denials are better than payments’ culture?”  My next post will give some answers.

As discussed in earlier posts, insurance is not a gamble taken by a policyholder.  Instead, the policyholder buys insurance to protect himself from the risk of a loss, whether it be a medical bill, damage to the policyholder’s property, an untimely death or a liability claim made against the policyholder by a third party.  The insurance company sells the policyholder a set of promises to pay covered claims.  Those promises are set forth in the insurance policy itself.  Once the policy is in place, the insurance company’s obligations to the policyholder and the policyholder’s rights and coverages are set, and cannot be changed until the policy is later renewed or is canceled for some reason.

Before the insurance company ever actually sells and issues the policy to the policyholder, it has gone through a process of determining how it intends to make a profit on the policy.  Insurance companies employ actuaries and underwriters who study the company’s risk associated with selling insurance policies.  Based on its analysis of its risk, the insurance company either agrees to sell the policy to the policyholder or decides not to do so because it does not believe the risk is a good one.  If an insurance company decides to sell a policy, it then decides (with some oversight by the Department of Insurance) how much money it will charge the policyholder in premiums.

When an insurance company decides to write a policy and sets the premium for that policy, the company has decided to take a risk that the losses the insured suffers under the policy will not cost more money than the premiums the policyholder pays.

In effect, the gamble the insurance company takes is taken at the time the policy is underwritten, priced, sold and issued to the policyholder.  If you think about it, an insurance company’s business model is based on taking risks.  And, judging by their bottom lines, they are very good at it.

Once the insurance company has done this, it must live with the consequences.  If it turns out the policyholder’s claims exceed the premium collected by the insurance company, so be it.  The insurance company doesn’t have a right to make a profit.  Instead, the insurance company in such a situation has lost its gamble.  The policyholder is entitled to the coverage he purchased for the price he paid.  If the insurance company no longer wants to take the risk of insuring a given policyholder, they can choose to change the bargain with the insured at the end of the policy period for renewal of the policy.  They can either refuse to renew or charge a higher premium.  Likewise, the policyholder can choose to go elsewhere for insurance.

However, regardless, the insurance company’s obligations and the policyholder’s rights are established up front.  As will be discussed in my next post, the insurance company cannot try to lessen the impact of paying claims on its bottom line at the time a claim is made under the policy by attempting to pay less than what is owed on claims.  To do so violates the duty of good faith and fair dealing.

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.

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.