In part 5 my series on Proving and Winning a First Party Bad Faith Case, I posted the interrogatories I recently served on the insurer’s attorney on a case I am handling in federal court in the Western District of Missouri. The interrogatories will provide me with information regarding how the policyholder’s claim was handled and the information helpful in determining who I will depose.

Now I am going to take a step back and talk about what is needed from the policyholder, as the plaintiff in a lawsuit. The insurance company will be hiring appraisers, contractors, and engineers, and possibly outside adjusters to adjust the policyholder’s claim. As this process is going along, the policyholder believes that the insurance company is trying to pay the claim fairly, when, in fact, many times the insurance company is merely trying to gather information in an attempt to pay as little as possible. Although I can send much discovery and spend much time taking the depositions of witnesses hired by the insurance company to show their bias and their lack of proper investigation and inadequate offers, an essential part of winning the bad faith case is the evidence and facts provided by the policyholder regarding what was said to him and the timing of the insurance company’s investigation.

From the beginning of any claim, the policyholder should be taking notes, using all of the technology available, noting when telephone calls occurred and the topics of conversation in those calls. Think of the who, what, when, why, and how approach. Document the date you speak to an insurance company representative or someone hired by the insurance company as well as the name of that person and what was said in the telephone call or the meeting.

The why of this process is the reason why the person is calling; during the conversation, ask the person why he is calling. Let the person tell you why he is calling, and document the reason you are told.

How should also be asked during every conversation. The question is simple and easy and should be asked differently depending on with whom you are speaking. If you are speaking to someone other than the claims adjuster you should ask the question as follows: “How are you involved in the handling of my claim?” If you are speaking to the claims adjuster you should ask in each conversation: “How is my claim coming along?”

Should the claim end up requiring litigation, this information will assist the policyholder’s attorney in effectively litigating the case, as these notes and documented evidence may lead to documents or facts the insurance company may attempt to withhold during litigation. It will also provide the policyholder’s view of what was said in telephone calls or the meetings – as the insurance company representative is also taking notes during calls and meetings. Every time my client has taken notes on a conversation with an insurance company’s representative or hired expert, the policyholder’s notes and the insurance company’s or hired expert’s notes always vary as to what was said during the telephone call or face-to-face meeting.

These notes are also helpful in responding to the insurance company’s discovery questions regarding why the policyholder believes he has sustained damages, been treated unfairly, and also provide valuable information regarding why the insurance company has acted unreasonably to delay the payment of the claim or has acted in bad faith. These notes can also be extremely helpful during oral deposition of the insurance company’s experts and witnesses, especially regarding the manner in which the insurance company has handled the claim. Thank you for taking the time to read my blog. I hope you find it helpful.