The “Genuine Issue” or
“Fairly Debatable” Defense in Bad Faith Actions*
Bruce D. Celebrezze
Jeffrey A. Meyers
I.
In
order to show bad faith on the part of an insurer, courts nationwide generally
find that the insured must demonstrate the non-existence of any reasonable
basis on which to deny its claim. Thus,
insurers may prevail on a bad faith claim, including at the summary judgment
stage, by demonstrating that a reasonable basis existed to deny coverage, or
that a “genuine issue” existed about whether there was a potential for
coverage.
A
majority of jurisdictions addressing this issue “have adopted some variant of a
‘fairly debatable standard,’ not imposing bad faith liability on the insurer so
long as the coverage question is ‘fairly debatable.’”[1] The various standards articulated by the
courts are grounded in the premise that, if the insurer denies coverage with a
reasonable basis to believe that no coverage exists, it acts without bad faith,
even if it errs initially in its coverage determination.
The
“fairly debatable” standard also applies beyond pure coverage questions. In Ellwein
v. Hartford Accident & Indemnity Co.,[2] the insureds asserted that the insurer
acted in bad faith by forcing them into arbitration to recover insurance
benefits, by failing to make a reasonable settlement offer, and by bringing a
motion for summary judgment before the arbitrators without reasonable
justification. In resolving the matter,
the court found that the “fairly debatable” doctrine could apply to both
coverage decisions and litigation strategy:
Applying the bad faith standard in the summary
judgment context, an insurer is ordinarily entitled to summary judgment
dismissal of a bad faith claim unless the insured shows there was no reasonable
basis for the insurer’s actions. Stated
another way, where there is no real dispute that an insurer had a reasonable
basis for its actions, dismissal of the bad faith claim on summary judgment is
appropriate. This “fairly debatable” standard for determining bad faith, as it
is commonly called, is followed in the vast majority of jurisdictions.[3]
Over
the past several years, the Ninth Circuit Court of Appeals has applied
California law to develop the “genuine issue” or “genuine dispute” doctrine in
order to establish whether an insurer can be liable for bad faith.[4] The doctrine was first applied by the Ninth
Circuit in Safeco Insurance Co. of
America v. Guyton.[5] The district court there had affirmed the
insurer’s coverage decision, awarding summary judgment against the insured on
its claims for breach of contract and bad faith.[6] The district court concluded that, “coverage
should be found only if the covered risk was the ‘sole or efficient proximate
cause’ of the loss and the covered risk preceded in time the operation of the
excluded risk.”[7] Therefore, it determined that the policies
did not cover the policyholders’ loss.
On appeal, the Ninth Circuit determined that the district court had
misinterpreted California law and reversed on the coverage issue, but reasoned
that the “genuine issue” doctrine applied to the bad faith claim:
Although the district court did not specify the
grounds on which it entered judgment for Safeco on this cause of action, it may
have concluded that since the policy in dispute involved a genuine issue
concerning legal liability, Safeco could not, as a matter of law, have been
acting in bad faith by refusing to pay on the Policyholders’ claims. Although we conclude that Policyholders’
losses are covered by the policy if third-party negligence is established, we
agree that there existed a genuine issue as to Safeco’s liability under
California law. We therefore affirm the
dismissal of Policyholders’ claims of bad faith.[8]
Cases
decided subsequent to Guyton have
expanded and clarified the “genuine issue” doctrine, applying it to both legal
and factual disputes. In Opsal v. United Services Automobile Ass’n,[9]
for example, the court found that an insurer’s denial of coverage to a
homeowner for a cracked slab under an “earth movement” exclusion was based on a
“genuine issue” regarding the scope of the exclusion. Therefore, the insurer’s position was reasonable and not in bad
faith.[10]
In
Guebara v. Allstate Insurance Co.,[11]
the insured argued that the “genuine dispute” doctrine should not be applied to
allegations of a biased investigation; rather, it should be limited to cases in
which a dispute exists over the meaning of a contractual provision or where
California insurance law is unsettled.[12] Noting that the California Supreme Court had
yet to discuss the scope of the “genuine issue” rule, the court nevertheless
observed that no Ninth Circuit case had limited the doctrine to legal
disputes. It noted further that lower courts
had “applied the rule to quintessentially factual disputes, or where
information revealed by the insurer’s independent experts [wa]s inconsistent
with an insured’s claims.”[13] The court therefore “decline[d] to limit the
genuine dispute doctrine to purely legal or contractual disputes” and, “[r]ather
than establish a bright-line rule,” held that “the genuine dispute doctrine
should be applied on a case-by-case basis.” [14]
Likewise,
in Chateau Chamberay Homeowners Ass’n v.
Associated International Insurance Co.,[15]
the California Court of Appeal found that there was a “genuine issue” regarding
coverage, concluding that the insurer was entitled to summary judgment on the
plaintiff’s bad faith claim. The court
held that the reasonableness of an insurer’s claims handling conduct is
normally a question of fact, but it “becomes a question of law where the
evidence is undisputed and only one reasonable inference can be drawn from the
evidence:”[16]
It is now settled law in
California that an insurer denying or delaying the payment of policy benefits
due to the existence of a genuine dispute with its insured as to the existence
of coverage liability or the amount of the insured’s coverage claim is not
liable in bad faith even though it might be liable for breach of contract.
. . . .
While many, if not most,
of the cases finding a genuine dispute over an insurer’s coverage liability
have involved legal rather than factual disputes, we see no reason why
the genuine dispute doctrine should be limited to legal issues. That does not mean, however, that the genuine
dispute doctrine may properly be applied in every case involving purely a
factual dispute between an insurer and its insured. This is an issue which should be decided on a case by case basis.[17]
For example, a coverage
dispute involving the proper construction and application of policy language
would be a legal dispute, while one
involving a disagreement as to the reasonable value of an insured’s claim would
be a factual one.[18]
The
decision in Filippo Industries, Inc. v.
Sun Insurance Co. of New York[19]
had briefly cast doubt on the viability of the
“genuine issue” doctrine. The Filippo court
found that a claim for bad faith against an insurer could be sustained even if
the insurer’s coverage decision was subsequently vindicated:
It is
reliance on hindsight that appellants seek to impose on this court. We, too, believe that public policy mandates
that the reasonableness of the insurer’s decision must be evaluated as of the
time it was made, and that no subsequent court ruling can be the justification
for the decision.[20]
Under this analysis, which appeared to contravene Guyton, the existence of a “genuine
issue” at the time of the coverage decision could not be supported by a
superior court’s determination that the denial of coverage was, in fact,
proper. The Chateau Chamberay court, however, declined to follow
the Filippo reasoning:
It is now
settled law in California that an insurer denying or delaying the payment of
policy benefits due to the existence of a genuine dispute with its insured as
to the existence of coverage liability or the amount of the insured’s coverage
claim is not liable in bad faith even though it might be liable for breach of
contract.[21]
This holding accords with the standards of bad faith articulated
earlier and appears to have silenced any residual doubts about the continued
validity of the “genuine issue” doctrine in California.
Other
jurisdictions have similarly applied a “fairly debatable” standard to an
insurer’s denial of coverage. For
example, in Hudson Universal, Ltd. v. Aetna Insurance Co.,[22]
the court described the standard as follows:
[I]f a claim is “fairly debatable,” no liability
for bad faith will arise.
To show a claim of bad
faith, a plaintiff must show the absence of a reasonable basis for denying
benefits of the policy and the defendant’s knowledge or reckless disregard of
the lack of a reasonable basis for denying the claim. It is apparent, then, that the tort of bad faith is an
intentional one. . . . implicit (sic) in that test is our conclusion that the
knowledge of the lack of a reasonable basis may be inferred and imputed to an
insurance company where there is a reckless . . . indifference to facts or to
proofs submitted by the insured.[23]
The court also found
that the issue could be decided as a matter of law:
Under the “fairly debatable” standard, a
claimant who could not have established as a matter of law a right to summary
judgment on the substantive claim would not be entitled to assert a claim for
an insurer’s bad faith refusal to pay the claim. This does not mean, however, . . . that if summary judgment is
granted the insured has established a bad faith claim. [A]n insurer’s disclaimer of coverage cannot
be held to be in bad faith unless the insured is granted summary judgment on
the issue of coverage. Even then, if
the coverage issue was “fairly debatable” at the time of the coverage decision,
the insurer’s decision would not constitute bad faith.[24]
Likewise,
in Pruitt v. Alaska Pacific Assurance Co.,[25]
the court addressed whether the handling of a claim involving damage to the
insured’s car was reasonable. Following
an estimate by its experienced claim representative, the insurer tried to
settle the claim, though the claim representative “doggedly held to his original
evaluation that there was old damage to the front and hood of the [insured’s]
truck.”[26] The court reasoned that, “[w]hile it might
have been preferable to seek the opinion of a second adjuster in light of the
dispute, [the insurer’s] total reliance on the single estimate of its
experienced adjuster . . . was reasonable and did not constitute bad faith.”[27]
II.
Several
cases have addressed the issue of an insurer’s punitive damage exposure where
no “genuine issue” exists as to coverage or where the insurer’s obligation to
pay under the policy is not “fairly debatable.” These cases generally have demonstrated that the “genuine issue”
or similar doctrine aids an insurer in reducing punitive damage exposure in bad
faith cases.
In
Franceschi v. American Motorists
Insurance Co.,[28]
the court concluded that because there existed a genuine issue as to the
insurer’s liability, the insurer’s denial of the claim was not unreasonable as
a matter of law. Thus, there could be
no punitive damage exposure. “For the
same reasons that [the insured’s] bad faith claims were properly dismissed,
punitive damages are not recoverable.”[29]
Similarly,
in Meyer v.
National Farmers Union Property & Casualty Co.,[30]
an insured commenced litigation against his crop insurer and agent to recover
payment under a multiple peril crop insurance policy and to recover damages for
bad faith and other torts. The court
concluded that there were two “fairly debatable” bases for denying the insured’s
claim for coverage; thus, no bad faith could arise.[31] The insured also had argued that the insurer
was liable for outrageous conduct, citing a violation of the duty of good faith
and fair dealing. The court concluded
that, since it had “already found . . . that [the insured] ha[d] not shown
violation of the duty of good faith and fair dealing in connection with the
investigation and handling of his crop insurance claim,” and because the
insured’s “claims for exemplary damages [we]re tied to his substantive claims,”
the court would also grant judgment against the plaintiff on his claim for
exemplary damages.[32]
In
Avila v. State Farm Fire & Casualty
Co.,[33]
the insureds brought action against their homeowners’ insurer “to recover
damages allegedly caused to their family residence by leaks from deteriorated
sewer lines and/or minor earth movement that resulted in cracks in the
structure’s foundation, as well as cosmetic damage.”[34] On the insurer’s motion for summary
judgment, the court discussed whether the insureds were entitled to an award of
punitive damages. The court first determined that the insurer could not be
liable for bad faith because denial of the underlying claim was based on the
insurer’s reasonable interpretation that the relevant homeowners’ policy did
not cover a foundation claim caused by a plumbing leak. As a result, liability was not “reasonably
clear” at the time the insurer denied the claim:[35] “It is
well-settled in Texas that evidence establishing only a bona fide coverage
dispute, as in this case, does not prove a claim for bad faith.”[36]
The
court then discussed whether the insurer was entitled to summary judgment on
the insureds’ request for punitive damages.
The insureds had argued that the insurer’s silence regarding its “no
coverage” belief constituted a false representation, actionable under
fraud. Although the court addressed
punitive damages with respect to the insureds’ fraud claims against the
insurer, it noted that punitive damages could be awarded only if the insureds
established intentional fraudulent conduct.[37]
The court then denied the request for punitive damages because the insureds had
“failed to meet their burden of establishing a prima facie case of common law
and statutory fraud.”[38]
III.
Although
few courts or commentators have discussed in great detail the adjuster’s role
in a “genuine issue” defense, the impact of an adjuster’s claims handling
process on subsequent “bad faith” lawsuits can be gleaned by reviewing some
nationwide cases. In McCabe v. State Farm
Mutual Automobile Insurance Co.,[39]
for example, an insured brought action
against her automobile insurer for damages arising out of the alleged
mishandling of her underinsured motorists claim, citing the alleged animosity
of the claims representative. The court
first noted that, to recover for bad faith, the insured must show that her
insurer “did not have a reasonable basis for denying benefits under the policy”
and that the insurer “knew or recklessly disregarded its lack of reasonable
basis in denying the claim.”[40] As for whether the alleged ill will of the
claims representative constituted bad faith, the court observed:
[The insured] complains that [the claims
representative] exhibited animosity toward her, making it impossible for State
Farm to fairly handle her claim. This
allegation misapprehends the bad faith claim, which requires an insured to
demonstrate a lack of reasonable basis to an insurer’s denial of benefits. The attitude of a lower level claims
representative, who lacked the authority to make final decisions on the claim
and who handled [the insured’s] claim for only a portion of the time, is not an
element of this cause of action. [The
insured] has failed to show how this alleged dislike for her resulted in State Farm’s
denying her UIM benefits without a reasonable basis.[41]
Similarly, in Erie Insurance
Co. v. Hickman,[42]
the insureds commenced a bad faith action against the insurer, and the lower
court entered judgment on a verdict awarding punitive damages. The intermediate
appellate court reversed, however, and the Indiana Supreme Court granted
transfer and remanded for reconsideration.
After the intermediate court again reversed, the supreme court
determined that the evidence did not support an award of punitive damages. In that determination, the court discussed
the acts of the claims representative and their impact on punitive damages:
[Tort claims for the failure of the insurer to
exercise good faith do] not arise every time an insurance claim is erroneously
denied. For example, a good faith
dispute about the amount of a valid claim or about whether the insured has a
valid claim at all will not supply the grounds for a recovery in tort for the
breach of the obligation to exercise good faith. This is so even if it is ultimately determined that the insurer
breached its contract. That insurance
companies may, in good faith, dispute claims, has long been the rule in
Indiana.
. . . .
The only dispute in the
evidence at trial was whether [the insured] was primarily at fault for the
accident. The verdict makes it clear
that the jury ultimately disagreed with Erie’s conclusion that [the insured]
was more than 50% at fault for the accident.
Nonetheless, the record contains clear evidence that there was a
rational, principled basis for the denial of the claim . . . [including]
sources of information upon which the adjuster had a right to rely in reaching
her determination. As such, the denial
of the claim was made in good faith.
That such a decision was ultimately found to be incorrect by a jury,
does not, standing alone, establish that the denial was not made in good
faith. Accordingly, after considering
only the probative evidence and the reasonable inferences supporting it, and
without reweighing evidence or assessing witness credibility, we conclude that
a reasonable jury could not find by clear and convincing evidence that Erie
acted with the malice, fraud, gross negligence, or oppressiveness necessary for
the imposition of punitive damages.[43]
Notwithstanding
this approach, the South Dakota Supreme Court
scrutinized the acts of the claims representative in Sawyer v. Farm
Bureau Mutual Insurance Co.[44] The court first confirmed that a bad faith cause of action
against an insurer requires that the insured demonstrate the “absence of a
reasonable basis for denial of policy benefits.”[45] It noted also that an insurance company may
“challenge claims which are fairly debatable and will be found liable only
where it has intentionally denied (or failed to process or pay) a claim without
a reasonable basis.”[46]
The
insured in Sawyer presented evidence
of the insurer’s bad faith in the form of a tape-recorded conversation between
the insurance claims representative and his supervisor. In that conversation,
the two had discussed strategies to make the insured appear deceitful, false
accusations that the insured had committed arson, false accusations of
extra-marital affairs involving the insured’s wife, the carrier’s exposure
under the policy, and strategies to avoid paying the full loss.[47] In addition, the claims representative
expressed reservations about “having too much on paper if we go to discovery,”
wondered about the insurer’s risk from “having too much on paper,” and
expressed a desire to avoid creating “a bad faith thing.”[48] The court therefore concluded that the trial court’s denial of the carrier’s motion for
directed verdict on the issue of bad faith was within its discretion. [49]
IV.
Courts
occasionally have discussed the impact of coverage counsel’s advice regarding
the claims handling process in subsequent “bad faith” lawsuits. They sometimes
cite an insurer’s compliance with counsel’s advice or industry custom as
factors when awarding summary judgment to the insurer in bad faith actions.[50] Other courts find that, while relevant to
the defense at trial, these factors provide no absolute defense so as to
sustain an award of summary judgment.
As one court explained:
[G]ood-faith reliance upon advice of
counsel may prevent imposition of punitive damages. But it is simply not
enough for the carrier to say it relied on advice of counsel, however
unfounded, and then expect that valid claims for coverage can be denied with
impunity pursuant to such advice. The
advice of counsel is but one factor to be considered in deciding whether the
carrier’s reason for denying a claim was arguably reasonable. We believe that where, through verbal
sleight of hand, the advising attorney concocts an imagined loophole in a
policy whose plain language extends coverage, such advice is heeded at the
carrier’s risk.[51]
In
Whitney v. Continental Insurance Co.,[52]
however, an insurer’s reliance on advice of counsel during the claims handling
process precluded an award of summary judgment to the insureds. The insureds
had commenced an action against their insurer seeking to establish coverage
under their homeowner’s and automobile insurance policies when they were sued
in tort following an automobile
accident involving their daughter. The insureds sought damages for unfair insurance practices under a Massachusetts statute,
enumerating specific claim settlement practices within the insurance
business. According to the court:
[The insureds] also claim that [their insurer]
failed “to effectuate prompt, fair and equitable settlements of claims in which
liability has become reasonably clear” in violation of § 3(9)(f), on the basis
that the numerous requests from [appointed defense counsel and employees of the
carrier] for settlement authority from defendant Continental demonstrate that
liability in the Lang action was
reasonably clear. However, in a
memorandum dated October 16, 1980, [the insurer’s] attorneys opined that the
Lang’s likelihood of recovery against [the insureds] was small, but recommended
settlement due to the magnitude of damages involved in that case. Since it is debatable whether liability was
reasonably clear to defendants, questions of material fact exist, precluding
summary judgment on this issue.[53]
The
supreme courts of Ohio and Arizona have made several recent attacks on the
attorney-client privilege in the bad faith context. In Boone v. Vanliner
Insurance. Co.,[54]
the insured brought action against his automobile
insurer to recover for the bad faith denial of underinsured motorists
benefits. The trial court permitted
discovery of most documents in the insurer’s claims file, and the insurer
appealed. The intermediate appellate
court affirmed in part, reversed in part, and remanded. The Supreme Court of Ohio subsequently held
that the insured was entitled to discover claims file materials containing
attorney-client communications if those materials were created prior to the
denial of coverage:
The issue before us is whether, in an action
alleging bad faith denial of insurance coverage, the insured is entitled to
obtain, through discovery, claims file documents containing attorney-client
communications and work product that may cast light on whether the denial was
made in bad faith.
. . . We [have] stated that “documents and other
things showing the lack of a good faith effort to settle by a party or the
attorneys acting on his or her behalf are wholly unworthy of the protections
afforded by any claimed privilege.”
Thus, we [have] held that, [in certain situations], “neither the
attorney-client privilege nor the so-called work product exception precludes
discovery of the contents of an insurer’s claims file. The only privileged matters contained in the
file are those that go directly to the theory of defense of the underlying case
in which the decision or verdict has been rendered.”
. . . .
Like the trial court, we
find that . . . claims file materials that show an insurer’s lack of good faith
in denying coverage are unworthy of protection. It appears, however, that in determining which documents were
protected in this case, the trial court [held that] only those documents containing
attorney-client communications and work product that go directly to the theory
of defense of the underlying claim are protected. We find this holding inapplicable in the present case because,
while the lack of a good faith effort to settle involves conduct that may
continue throughout the entire claims process, a lack of good faith in
determining coverage involves conduct that occurs when assessment of coverage
is being considered. Therefore, the
only attorney-client and work-product documents that would contain information
related to the bad faith claim, and, thus, be unworthy of protection, would
have been created prior to the denial of coverage.
For the foregoing
reasons, we hold that in an action alleging bad faith denial of insurance
coverage, the insured is entitled to discover claims file materials containing
attorney-client communications related to the issue of coverage that were
created prior to the denial of coverage.
At that stage of the claims handling, the claims file materials will not
contain work product, i.e., things prepared in anticipation of litigation,
because at that point it has not yet been determined whether coverage
exists. Of course, if the trial court
finds that the release of this information will inhibit the insurer’s ability
to defend on the underlying claim, it may issue a stay of the bad faith claim
and related production of discovery pending the outcome of the underlying
claim.[55]
The
dissent took issue with the majority, asserting that the holding diminished the
attorney-client privilege without a reasoned basis for doing so:
The majority’s holding is also startling for its
practical effect. After today’s
decision, an insured need only allege the insurer’s bad faith in the complaint
in order to discover communications between the insurer and the insurer’s
attorney. Not even an allegation of the
crime-fraud exception’s applicability carries such an absolute entitlement to
discovery of attorney-client communications.
In order to overcome the attorney-client privilege based on the
crime-fraud exception, a party must demonstrate “a factual basis for a showing
of probable cause to believe that a crime or fraud has been committed and that
the communications were in furtherance of the crime or fraud.” The rule created today requires no similar
prima facie showing of bad faith before an insured is entitled to discover
attorney-client communications of the insurer.
The result of the majority’s decision is a categorical exception to the
attorney-client privilege applicable in any case alleging a bad-faith denial of
insurance coverage. This is a sweeping
exception that a number of courts have refused to adopt. The majority has simply decided that
insurance-bad-faith cases should be treated differently as far as the
attorney-client privilege is concerned, ignoring that “the nature of the
relationship, not the nature of the cause of action, controls whether
communications between attorney and client can be discovered.”[56]
The
Supreme Court of Arizona, in State Farm
Mutual Automobile Insurance Co. v. Lee,[57]
also narrowly construed the attorney-client privilege in this context. In Lee,
an insurer brought a special action to challenge a
discovery order of the superior court compelling it to produce documents over a
claim of attorney-client privilege in an underlying class action. Discovery was
ordered because the insurer had impliedly waived the privilege by relying on
the advice of counsel as a defense. The
intermediate appellate court granted the insurer relief and accepted review. The supreme court subsequently held that, by
asserting a subjective evaluation and understanding on the part of its
personnel about the state of the law on coverage “stacking” for underinsured
and uninsured motorists claims, the insurer had affirmatively injected its
claims manager’s legal knowledge into the action. This strategy placed the sources of this legal knowledge at
issue, thereby waiving the attorney-client privilege for communications between
the insurer and its counsel regarding the propriety of a policy that denied
stacking:
By asserting the subjective evaluation and
understanding of its personnel about the state of the law on stacking, State
Farm has affirmatively injected the legal knowledge of its claims managers into
the litigation and put the extent, and thus the sources, of this legal
knowledge at issue. State Farm’s claims
managers cannot testify that they investigated the state of the law and
concluded and believed they were acting within the law but deny Plaintiffs the
ability to explore the basis for this belief and to determine whether it “might
have known its actions did not conform to the law.” Therefore, the privilege is
waived as to communications between State Farm and its counsel regarding the
propriety of State Farm’s policy of denying stacking prior to our decision in Lindsey.[58]
Other
decisions have recognized the possibility that no attorney-client privilege
exists when a coverage attorney’s conduct goes beyond that of giving legal
advice, to participation in the claims-handling process. In Rumpza
v. Donalar Enterprises, Inc.,[59]
the insureds sued their property insurer and an insurance agent after the
insurer relied on a vacancy endorsement to refuse full coverage for fire damage
to a vacant house. The court
subsequently granted the insurer’s motion for summary judgment on the insureds’
breach of contract claim. It also
denied the insureds’ motions to amend their complaint and to have the insurer’s
attorney disqualified. The insureds and
the agent appealed. The South Dakota
Supreme Court held that the property insurer’s attorney could be disqualified
involuntarily from defending the insurer based on the attorney’s involvement in
the claims process that occasioned the lawsuit. Such disqualification would
occur, however, only if the insureds could show that: (1) no means existed to
obtain the requested information other than to depose the attorney; (2) the
information was relevant and nonprivileged; and (3) the information was crucial
to the preparation of the case.[60] As the court noted:
[The insureds’] amended
complaint should be allowed to include allegations of willful and vexatious
refusal to pay and bad faith. [The
insurer’s president] has admitted that [coverage counsel] was intimately
involved in the claims process which provides the basis for these claims. [The insureds] allege that [coverage
counsel] “may be the only witness available to explain Stockholm’s denial of
benefits given his involvement with interviewing [the broker] prior to
[coverage counsel’s] letter on behalf of Stockholm to the [insureds].” The tape recorded interview indicates that
[the broker] did not believe the house would be vacant and was appraised by
[the insureds] of the occupancy status of the home. [Coverage counsel], however, authored the subsequent July 14,
1993, letter to [the insureds] stating that [the broker] believed the house
would continue to be occupied when the policy was first issued.
It is clear that
[coverage counsel’s] testimony would be sought on the contested issue of
whether Stockholm’s basis for denial of the claim was reasonable. Upon remand, the trial court should conduct
a hearing to determine if disqualification is justified in a case such as this
where the attorney’s conduct went beyond that of giving legal advice and
participated directly in the claims process.[61]
Still
other courts have discussed additional situations in which a waiver of
attorney-client privilege will be found in cases involving bad faith claims
against an insurer. [62] These are worth noting on a case-by-case
basis.
V.
As
noted above, at least some jurisdictions have considered sincere reliance on
the advice of counsel as a defense to bad faith. In Brandon v. Sterling
Colorado Beef Co.,[63]
the court reversed a bad faith judgment entered when the insurer decided to
appeal the decidedly hopeless defense of a workers’ compensation award. The court there found that the insurer’s
reliance on advice of counsel was sufficient to preclude the subjective element
of bad faith.
A
similar finding obtained in Davis v.
Cotton States Mutual Insurance Co.[64] In Davis,
the insurers filed a declaratory judgment action after counsel confirmed their
uncertainty regarding whether an exclusion for off-road vehicles would
apply. The Davis court affirmed summary judgment for the insurers regarding
bad faith even though the insurers’ legal position had not yet been
addressed. The court reasoned that
nothing in the record had shown “that the insurers were not entitled to rely on
their lawyer’s advice.”[65]
Likewise,
in Barnes v. Oklahoma Farm Bureau Mutual
Insurance Co.,[66] the court discussed the impact of
adhering to advice of counsel:
In a tort case against an insurer for breach of
the implied duty of good faith and fair dealing (i.e. for bad faith) it is the
unreasonableness of the insurer’s actions that is the essence of the tort. Although reliance on the advice of counsel
can be a defense to a bad faith suit, the reliance on counsel’s advice must be
reasonable. . . . Further, even where
there has been no judicial interpretation of a relevant statutory provision,
the reasonableness of reliance on advice of counsel will normally be a fact
question where counsel misreads the plain language of a statute.[67]
Most
courts consider the advice of counsel but one of several factors relevant in
determining whether bad-faith liability should be imposed on an insurance
company.[68] As one commentator has noted:
No court has analyzed in any depth the role that
the advice of counsel defense ought to play in the law of bad faith. The few opinions that have addressed the
issue have tended to breeze over the question, and none has attempted to tie
the defense to the existing theoretical structure that supports this body of
law.
The great majority of
cases that have alluded to the advice of counsel have held merely that such
advice is a factor the jury may consider when deciding whether the insurer
acted in bad faith.[69]
Other
evidentiary issues concern whether an insured is properly allowed to
discover material in the claims file
when pursuing a bad faith claim. There
is little dispute that such files are discoverable. The decision in Bergeson v. National Surety Corp.[70]
presents one court’s rationale for disclosing such material:
In a first party bad
faith case such as this, where the insurance company has refused to pay
benefits claimed under the policy, the critical issue is whether the company
had a good faith basis for its decision.
This in turn requires a number of other inquiries, including the
substance of any investigations conducted by the insurer, the information
available to the company at the time its decision was made, and the manner in
which the company arrived at its decision, including reliance on advice of
counsel. The insurance company’s claims
file constitutes the only source of this information. Clearly, it is “relevant to the subject matter involved in the
pending action” and “reasonably calculated to lead to the discovery of
admissible evidence.”
The only issue then is
whether particular documents within the claims file were prepared in
anticipation of litigation or fall within the attorney client privilege and, if
so, whether they may be withheld from discovery. The Court finds ample authority to support a ruling that the
claims file should be disclosed in a bad faith action against an insurance
carrier. As stated by the Supreme
Court of Arizona in Brown:
Bad
faith actions against an insurer, like actions by client against attorney,
patient against doctor, can only be proved by showing exactly how the company
processed the claim, how thoroughly it was considered and why the company took
the action it did. The claims file is a
unique, contemporaneously prepared history of the company’s handling of the
claim; in an action such as this the need for the information in the file is
not only substantial, but overwhelming.
This Court agrees that
the insurance company’s claims file is permissible discovery in a bad faith
action brought by its insured for failure to pay a claim. In this case, however, the underlying
dispute over insurance coverage has not yet been resolved: Under Count One of
the complaint, plaintiff seeks over $50,000 damages for breach of the “business
interruption” clause of the policy. For
the claims file to be discoverable, the underlying claim must first be
resolved, either by settlement or litigation.
Otherwise, privileged material may be disclosed which would jeopardize
the insurance company’s defense.
Given the need for
complete discovery to be afforded to all parties to the action, the interest of
justice would best be served by bifurcating the bad faith claims from the
remainder of the case and determining the liability issue first. Following resolution of the underlying
policy claim, plaintiff shall have access to the entire claims file for
inspection and copying, and the case shall proceed on the issue of National’s
bad faith.[71]
VI.
Conclusion
The
“genuine issue” or “fairly debatable” defense represents a powerful tool for
insurers when defending claims for breach of the implied covenant of good faith
and fair dealing. Courts nationwide
recognize that an insurer should not be liable for such a breach every time the
insurer argues for a particular interpretation of its policy language or errs
in handling a claim. Rather, more egregious conduct should be
manifest before awarding a bad faith judgment.
If legitimate issues or arguments exist, an insurer must be free to
advance those arguments without fear of exposure to bad faith claims or punitive
damage awards.
Insurance
representatives and coverage counsel should become familiar with the “genuine
issue” and “fairly debatable” defenses.
They must also educate their insureds and insureds’ counsel about the
application of these defenses. This
awareness should reduce bad faith cases or at least minimize them so that they
can be settled at an earlier date and on more reasonable terms.
ENDNOTES
* Submitted by the authors on behalf of the FDCC Insurance
Coverage Section.
[1] Dianne K. Dailey et al., First-Party Bad Faith, 29-WTR Brief 44, 45 (2000).
[2] 15 P.3d 640 (Wash. 2001).
[3] Id. at 645
(citations and footnote omitted).
[4] California courts have stated that the issue can be
resolved by summary judgment. See, e.g., Franceschi v. Am. Motorists Ins.
Co., 852 F.2d 1217, 1220 (9th Cir. 1988) (courts can conclude, as a matter of
law, that an insurer’s denial of a claim is not unreasonable, so long as there
exists a genuine issue as to the insurer’s liability).
[5] 692 F.2d 551 (9th Cir. 1982).
[6] Id. at 553.
[7] Id.
[8] Id. at 557.
[9] 10 Cal. Rptr. 2d 352 (Ct. App. 1991).
[10] Id. at 357. “As the Ninth Circuit Court of Appeals has
explained in a similar context, bad faith liability cannot be imposed where
there ‘exist[s] a genuine issue as to [the insurer’s] liability under
California law.” Id. (citation omitted).
[11] 237 F.3d 987 (9th Cir. 2001).
[12] Id. at 992.
[13] Id. at
993-94 (citations omitted).
[14] Id. at 994.
[15] 108 Cal. Rptr. 2d 776 (Ct. App. 2001).
[16] Id. at 784
(citation omitted).
[17] Id. at
784-85 (citations and footnote
omitted).
[18] Id. at 785 n.7.
[19] 88 Cal. Rptr. 2d 881 (Ct. App. 1999).
[20] Id. at 888-89.
[21] Chateau Chamberay, 108
Cal. Rptr. 2d at 784.
[22] 987 F. Supp. 337 (D.N.J. 1997).
[23] Id. at 341 (citations omitted).
[24] Id. at 342
(citations and footnote omitted).
[25] 626 P.2d 528 (Wash. Ct. App. 1981).
[26] Id. at 530.
[27] Id. See also First Nat’l Bank of Louisville
v. Lustig, 96 F.3d 1554 (5th Cir. 1996) (under Kentucky law, two situations
exist in which a claim may be rendered “fairly debatable” so as to protect an
insurer who is challenging a bad faith claim:
(1) if the issue is one of first impression in Kentucky and authorities
from other jurisdictions support the insurer’s position, and (2) if a dispute
exists over relevant facts related to coverage); Spearman Indus., Inc. v. St.
Paul Fire & Marine Ins. Co., 139 F. Supp. 2d 943, 949 (N.D. Ill. 2001)
(insurer entitled to summary judgment under Illinois statute permitting award
of attorney’s fees or punitive damages for insurer’s bad faith; “insurer’s
conduct is not ‘vexatious and unreasonable’ if: (1) there is a bona fide
dispute concerning the scope and application of insurance coverage, (2) the
insurer asserts a legitimate policy defense, (3) the claim presents a genuine
legal or factual issue regarding coverage, or (4) the insurer takes a
reasonable legal position on an unsettled issue of law”) (citation omitted); Worthington v. Euwema Ins. Agency,
Inc., No. CIV. 1996-100, 2000 WL 1751838, at *3 (D. V.I. May 2, 2000) (“‘fairly
debatable’ standard is premised on the idea that when an insurer denies
coverage with a reasonable basis to believe that no coverage exists, it is not
guilty of bad faith even if the insurer is later held to have been wrong” (so
long as based on a question of law or fact); to withstand a motion for summary
judgment in a bad faith claim, an insured who opposes such a motion must
present evidence tending to show insurer had no reasonable justification for
refusing the claim); Douglas v. State Farm Lloyds, 37 F. Supp. 2d 532, 536-38
(S.D. Tex. 1999) (where bona fide dispute existed as to whether damage was
excluded from homeowner’s policy, insurer’s liability was not reasonably clear
and denial of coverage did not constitute breach of duty of good faith and fair
dealing under Texas law); Simmons v. Allstate Ins. Co., No. CIV. A. 96-5112,
1996 WL 728753, at *9 (E.D. Pa. Dec. 18, 1996) (“in order to impose ‘bad faith’
liability, the insured must demonstrate that ‘no debatable reasons existed for
denial of the benefits’ available under the policy. This standard has been interpreted to mean that if there are
genuine issues of material fact regarding coverage which would preclude summary
judgment in favor of the insured plaintiffs, then the insurer cannot be held
liable in bad faith for consequential damages”) (citations omitted); Reedy v. White Consol. Indus., Inc.,
890 F. Supp. 1417, 1436 (N.D. Iowa 1995) (“An insurer is entitled to debate a
‘fairly debatable’ claim whether the debate concerns a matter of fact or law”)
(citation omitted); Albert H.
Wohlers & Co. v. Bartgis, 969 P.2d 949 (Nev. 1998) (insurer’s obligation to
pay under policy was not found “fairly debatable” and could not therefore
operate to create question of fact regarding insurer’s liability for bad faith
failure to pay); Billings v. Union Bankers Ins. Co., 918 P.2d 461 (Utah 1996)
(“fairly debatable” defense is available to first-party insurer against claim
for breach of implied covenant of good faith and fair dealing in insurance
contract); Gen. Star Indem. Co. v. Anheuser-Busch Cos., 741 So. 2d 1259, 1261
(Fla. Dist. Ct. App. 1999) (citing to dicta adopting “fairly debatable”
standard, court declared that “[t]he standard for evaluating bad faith claims
against insurers for first party as well as third party claims under the common
law as well as under the [Florida] statute is whether the insurer acted fairly
and honestly toward its insured with due regard for the insured’s interests”)
(citations omitted); Midway Motor Lodge of Brookfield v. Hartford Ins. Group,
593 N.W.2d 852, 858 (Wis. Ct. App. 1999) (“an insurance company that declines
to defend [an insured] . . . is not liable to [the] insured unless there is, in
fact, coverage under the policy or coverage is determined to be ‘fairly
debatable’”) (citation omitted).
[28] 852 F.2d 1217 (9th Cir. 1988).
[29] Id. at 1220.
[30] 957 F. Supp. 1492 (D. Wyo. 1997).
[31] Id. at 1502.
[32] Id. at 1504.
[33] 147 F. Supp. 2d 570 (W.D. Tex. 1999).
[34] Id. at 573.
[35] Id. at 576-77.
[36] Id. at 577.
[37] Id. at 580 n.58.
[38] Id. at 581-82. See also Szumigala v. Nationwide Mut.
Ins. Co., 853 F.2d 274 (5th Cir. 1988) (whether automobile insurer’s delay in
making medical payments owed to insureds was arguably reasonable was an issue
of material fact, precluding summary judgment on claim that insurer’s 19-month
delay in paying medical coverage was in bad faith so as to warrant punitive
damages); Bibeault v. Hanover Ins Co., 417 A.2d 313, 319 (R.I. 1980)
(distinguishing between intent needed to prove tort of bad faith and intent
needed for punitive damages, declaring that “the intent necessary to establish
the tort of bad faith is not equivalent to the intent that would sustain an
award for punitive damages,” and that an award of punitive damages requires a
showing that the insurer “acted with malice, wantonness, or wilfulness”); Savio
v Travelers Ins. Co., 678 P.2d 549, 554 (Colo. Ct. App. 1983) (“[e]stablishment
of claim for breach of a good faith duty alone is not sufficient to establish a
claim for punitive damages” against insurer).
[39] 36 F. Supp. 2d 666 (E.D. Pa. 1999).
[40] Id. at 670 (citation omitted).
[41] Id. at 671 (citations to record omitted).
[42] 622 N.E.2d 515 (Ind. 1993).
[43] Id. at
520-23 (citations and footnotes
omitted).
[44] 619 N.W.2d 644 (S.D. 2000).
[45] Id. at 649 (citations omitted).
[46] Id.
[47] Id. at 650.
[48] Id.
[49] Id. See
also Minton v. Tennessee Farmers Mut. Ins. Co., 832 S.W.2d 35 (Tenn. Ct.
App. 1992) (insured’s failure to comply with insurance claims representative’s
demand that insured have ring repaired locally rather than mail it to original
vendor for repair did not justify insurer’s failure to pay damages; adjustor’s
demand was unreasonable and placed limitation on coverage not contained in
insured’s homeowners policy such that insured was entitled to statutory award
of additional damages against insurer for its failure to pay loss in good
faith).
[50] See, e.g., Hanson
v. Prudential Ins. Co., 783 F.2d 762 (9th Cir. 1985) (reliance on insurance
industry practice); Davis v. Cotton States Mut. Ins. Co., 604 So. 2d 354 (Ala.
1992) (reliance on advice of informed counsel); Boston Symphony Orchestra, Inc.
v. Commercial Union Ins. Co., 545 N.E.2d 1156 (Mass. 1989) (reliance on outside
counsel); Larsen v. Allstate Ins. Co., 857 P.2d 263 (Utah Ct. App. 1993)
(reliance on opinion of counsel).
[51] Szumigala v. Nationwide Mut. Ins. Co., 853 F.2d 274, 282
(5th Cir. 1988).
[52] 595 F. Supp. 939 (D. Mass. 1984).
[53] Id. at 947
(citation omitted).
[54] 744 N.E.2d 154 (Ohio 2001).
[55] Id. at 156-58 (citations
omitted).
[56] Id. at 160-61 (citation
and footnote omitted) (Cook, J., dissenting).
[57] 13 P.3d 1169 (Ariz. 2000).
[58] Id. at 1182 (citation and footnote omitted).
[59] 581 N.W.2d 517 (S.D. 1998).
[60] Id. at 525.
[61] Id.
[62] See, e.g.,
Hartford Fin. Servs. Group, Inc. v. Lake County Park and Recreation Bd., 717
N.E.2d 1232 (Ind. Ct. App. 1999) (correspondence and memoranda regarding
insured’s loss claim exchanged between a property insurer and its legal counsel
before the insured sued the insurer for bad faith in handling the claim were
protected by the attorney-client privilege and were not subject to discovery in
suit where documents concerned the insurer’s request for legal advice relating
to the claim, the insurer had provided a detailed privilege log, and the issue
of coverage remained unresolved); Morton v. Bank of
The Bluegrass & Trust Co., 18 S.W.3d 353, 361 (Ky. Ct. App. 1999)
(attorney-client privilege did not apply to knowledge of insurance company
attorneys regarding any underwriting rule or plan by company to perpetrate a
fraud on the insureds under a group credit life insurance policy; “[the
insured] has the right to depose the attorneys concerning their knowledge as to
any underwriting rule, their knowledge of any plan by [the carrier] to
perpetrate a fraud on the [insureds], and any other similar and relevant matter
not subject to the attorney-client privilege”); Clausen v. National
Grange Mut. Ins. Co., 730 A.2d 133 (Del. Super. Ct. 1997) (in bad faith action
where insurer denies an unreasonable justification for non-payment and alleges
an affirmative defense of failure to supply necessary information,
attorney-client privilege is not waived, but privilege is waived if insurer
relies upon advice of its counsel as justification for non-payment and routine
claim handling).
[63] 827 P.2d 559, 561 (Colo. Ct. App. 1991).
[64] 604 So. 2d 354 (Ala. 1992).
[65] Id. at 359.
[66] 11 P.3d 162 (Okla. 2000).
[67] Id. at 174. See also Gorman v. Southeastern Fid.
Ins. Co., 775 F.2d 655, 659 (5th Cir. 1985) (noting that “[b]ecause of the
ambiguous statutory language and the lack of judicial interpretation of this
specific section of the Mississippi statutes, [the insurer] was entitled to
rely upon its, and its local counsel’s, interpretation that no notice was
required by the statute in this situation.
Accordingly, as a matter of law, [the insurer] had a legitimate or
arguable reason for denying [the insured’s] claim;” court further noted that
“good faith reliance upon the advice of counsel may also prevent the imposition
of punitive damages”); H. Walter Croskey
et al., California Practice Guide Insurance Litigation § 12:1257 (2001) (“An insurer’s good faith reliance on advice of counsel should
eliminate punitive damages in most, if not all, cases”).
[68] Marc L. Sherman, Insurance
Bad-Faith Actions – “Advice-Of-Counsel” Defense, 16 Am. Jur. Proof of Facts 3d 419, 444-45 (1989).
[69] Stephen S. Ashley,
Bad Faith Actions Liability & Damages § 7:13 (2d ed. 1997) (footnote
omitted). See also St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 917
S.W.2d 29, 56 (Tex. App. 1995), aff’d in
part and rev’d in part on other grounds, 974 S.W.2d 51 (Tex. 1998) (fact
that insurer depended on advice of counsel in denying a claim does not alone
establish insurer’s good faith, but does constitute a circumstance to be
considered in that regard); Giampapa v. Am. Family Mut. Ins. Co., 919 P.2d 838,
841 (Colo. Ct. App. 1995) (insurer may not defend against a claim for bad faith
merely on basis that it relied on advice of counsel); Annotation, Reliance on, Or Rejection of, Advice of
Counsel as Factor Affecting Liability in Action Against Liability Insurer for
Wrongful Refusal to Settle Claim, 63 A.L.R.3d 725 (2000) (“Just as an insurer’s reliance on the
advice of counsel has been a factor mitigating against its liability for
refusing to settle a claim against its insured, so also the courts have
expressly or implicitly agreed that the insurer’s rejection of counsel’s advice
to settle is one, and only one, factor tending to indicate that the insured
(sic) acted negligently or in bad faith in refusing to settle”); H. Walter Croskey et al., California Practice
Guide Insurance Litigation § 12:1249
(2001) (“Good faith reliance on
advice of counsel is a factor in determining whether the insurer acted in ‘bad
faith.’ Along with other relevant
evidence, it may tend to show the insurer was acting ‘reasonably’ in its
handling of the claim”) (citations omitted); David
L. Leitner et al., 2 Law and Practice of Ins. Coverage Litig. § 29.6
(2000) (“Courts which allow reliance
on the advice of counsel defense have generally held that reliance on such
advice is only one of the factors to consider in determining whether an insured
breached its duty to the insured by failing to settle the underlying claim”).
[70] 112 F.R.D. 692 (D. Mont. 1986).
[71] Id. at 697
(citations omitted). See also Dunn v Nat’l Sec. Fire &
Cas. Co., 631 So. 2d 1103 (Fla. Dist. Ct. App. 1993) (third party was
improperly denied opportunity to examine insurer’s claim file since
attorney-client privilege does not protect claim file in bad-faith actions).
(Authors’ bios)
Bruce
D. Celebrezze is the chairman of Celebrezze, Harrison & Berg, a
Professional Corporation, in San Francisco and Los Angeles. Mr. Celebrezze graduated from the University
of Notre Dame in 1976 and obtained his J.D. degree from the University of
Michigan in 1979. Mr. Celebrezze’s law
practice entails coverage, bad faith, and complex commercial litigation. He is a member of the Federation of Defense
and Corporate Counsel and other professional organizations. He has published numerous papers for and
participated as a lecturer in many continuing legal education courses on a
variety of insurance coverage issues.
Jeffrey
A. Meyers is an attorney with Tressler, Soderstrom, Maloney & Priess in Los
Angeles. He earned his B.A. degree from
the University of California at Berkeley in 1989. He earned his J.D. from the University of Southern California Law
Center in 1994. He concentrates his
practice on insurance coverage advice and litigation. Mr. Meyers is co-author of the article, “Allocation Among Self-Insured, Uninsured, and Underinsured Periods,”
that appeared in the FICC Quarterly
(Summer 1999).