In the world of first-party insurance claims and litigation, we hear and use the term “bad faith” nearly every day. The term regularly arises when contractors, public adjusters, and attorneys are attempting to resolve a first party insurance claim pre-suit. Then, if litigation is necessary, bad faith often becomes a distinct claim made on behalf of policyholders. Because “bad faith” is a distinct claim in litigation, though, the term is inherently adversarial and, pre-suit, it carries an accusatory tone. It also carries different meanings based upon the state in which the claim arises, and in some states, proving an insurer’s bad faith through litigation is incredibly difficult as it may require proof of intentional dishonesty or oppressive conduct by the insurer.1

The pre-suit claim resolution process should not be adversarial. When insurers make the pre-suit claim resolution process adversarial, we argue impropriety. Why, then, would it be beneficial to policyholders to make the pre-suit claim resolution process adversarial? In short answer, it would not be.

Considering the adversarial nature of the term “bad faith,” avoiding this term prior to litigation could benefit policyholders. I know this seems like a crazy idea, but think about it – generally speaking, bad faith is an insurer’s failure to act in good faith and with fair dealing. As policyholder advocates, we want to give the insurer every possible opportunity to act in good faith. If and when the insurer fails to do so, such failure can be pointed out in a non-adversarial way by advising the insurer they are failing to act in good faith and failing to treat their insured with fair dealing. On its most basic level, this has the same meaning as claiming bad faith actions or inactions by the insurer but shifts the tone of the conversation from one that is accusatory to one that is cooperative.

When an insurer is accused of bad faith during the claims handling process, they have a reason to become defensive; they may escalate the claim to a higher level within the insurance company; they may point the finger at the policyholder later for attempting to “set up” a bad faith claim; or they may believe the policyholder will file a lawsuit. Each of these instances make it harder for policyholders to resolve their claims. For example, some insurer claims handling guidelines direct adjusters to report a claim or threatened claim of bad faith to the company’s internal legal department and/or the adjuster’s superiors. The bad faith claim or threatened bad faith claim is escalated up the chain of command and certain additional procedures are implemented, which can delay the timeline of resolving the policyholder’s claim and possibly result in a change of adjusters assigned to the claim. This does not benefit the policyholder.

Likewise, when a bad faith accusation is made pre-suit and the insurer believes it has not acted in bad faith, the insurer may later point the finger at the insured and argue the insured acted in an underhanded way to attempt to manufacture a bad faith claim against the insurer. I recently saw this scenario play out where a public adjuster participated in an inspection of a damaged property with the insurer’s adjuster and engineer. The public adjuster became angered when the insurer’s engineer stopped considering the public adjuster’s perspective on the extent of hail damage to a roof, then the public adjuster accused the insurer of acting in bad faith and proceeded to record the inspection on video. At mediation, the interaction between the public adjuster and the insurer’s adjuster became a problem, as the insurer argued the public adjuster became malicious towards the insurer and such maliciousness was the reason the parties failed to resolve the insurance claim prior to litigation. This did not benefit the policyholder.

A privilege can also attach to an insurer’s internal correspondence and documents created after the date the insurer anticipated litigation. This privilege effectively prevents policyholders from obtaining key documents during the discovery phase of litigation. The privilege typically arises based on the date the insurer reasonably anticipated litigation, which in some instances could mean the privilege attaches to all documents created after the date the policyholder’s representative claims the insurer is acting in bad faith. When this happens, attorneys are faced with the added hurdle of arguing the anticipation of litigation privilege does not apply to the allegedly privileged documents within the policyholder’s claim file, which could result in months of motion practice only to receive an adverse order by the court affirming the insurer’s position. This does not benefit the policyholder.

Each of these scenarios support a shift in language from accusing an insurer of acting in “bad faith” to asking the insurer to act in “good faith.” By asking the insurer to act in good faith pre-suit, the policyholder’s advocate is giving the insurer an additional opportunity to act in good faith in a non-adversarial way. This could prevent the adjuster from feeling attacked or becoming defensive; it encourages cooperation; it could avoid escalation of the claim to higher levels within the insurance company; it could avoid the insurer claiming the policyholder “set up” a bad faith claim; and it could keep key documents and correspondences from becoming privileged in the event litigation ensues.
1 See, e.g., Columbia Nat. Ins. Co. v. Freeman, 64 S.W.3d 720 (Ark. 2002).