Archive for the 'NJ -ITPA and UCSPA' Category

NOVEMBER 2018 BAD FAITH CASES: NEW JERSEY CFA CLAIM CAN PROCEED WHERE NO DENIAL OF AN INSURANCE BENEFIT ALLEGED (Third Circuit – New Jersey)

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In this New Jersey action, the plaintiff alleged that the insurer’s agent deceived and defrauded her into signing a release of claims against the insurer. Specifically, the insured alleged that she was injured in an auto accident, and the insurer’s agent showed up at her home with papers to sign. The agent allegedly represented the documents were necessary to process and advance payments on her claim. However, unknown to her, the documents actually included a broad release of all her claims.

Plaintiff initiated a class action under New Jersey’s Consumer Fraud Act (CFA). The District Court found the CFA inapplicable to this fact scenario, on the basis that the CFA does not address the denial of insurance benefits, and further found the CFA conflicts with the Insurance Trade Practices Act (ITPA) or Unfair Claims Settlement Practices (UCSPA) regulations under these circumstances.

The Third Circuit reversed.

The Third Circuit found that the alleged deceptive and fraudulent conduct against a consumer did not amount to the denial of an insurance benefit. It further found that there was no conflict between allowing a statutory CFA private claim to proceed, even if regulatory relief might also be proper under the ITPA or UCSPA.

Date of Decision: November 15, 2018

Alpizar-Fallas v. Favero, United States Court of Appeal for the Third Circuit, No. 17-3837 (3d Cir. Nov. 15, 2018) (Jordan, Rendell, Vanaskie, JJ.)

OCTOBER 2018 BAD FAITH CASES: INSURED CAN NEITHER PURSUE (1) PRIVATE CLAIMS UNDER UNFAIR CLAIMS SETTLEMENT PRACTICES ACT, NOR (2) UNDER PROPOSED INSURANCE FAIR CONDUCT ACT SINCE IT HAS NOT BECOME LAW (New Jersey Federal)

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The insured attempted to bring a claim under Senate Bill 2144, the proposed Insurance Fair Conduct Act. However, this bill has never become law, and the court would not permit the insured to pursue such a claim. Nor could the insured pursue a claim under New Jersey’s Unfair Claims Settlement Practices Act since this did not provide a private right of action.

Date of Decision: October 23, 2018

Bell v. Crown Life Ins. Co., United States District Court District of New Jersey Civil Action No. 3:16-cv-08006 BRM-DEA, 2018 U.S. Dist. LEXIS 181562 (D.N.J. Oct. 23, 2018) (Arpert, J.)

NEW JERSEY SENATE PASSES STATUTORY BAD FAITH BILL -- OR WILL SOME SAY IT IS AN INSURER NEGLIGENCE BILL?

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On June 7, 2018, New Jersey’s Senate passed New Jersey Senate Bill 2144, the New Jersey Insurance Fair Conduct Act (IFCA). In its current form, the proposed law creates an insurance bad faith statute that would provide remedies for “an unreasonable delay or unreasonable denial of a claim for payment of benefits under an insurance policy,” and/or for violations N.J. Statute 17:29B-4. Among other provisions, subsection 9 of 17:29B-4 includes New Jersey’s Unfair Claims Settlement Practices Act (UCSPA), which lists 14 different forms of insurer misconduct.

COULD THE PROPOSED LAW ONLY REQUIRE PROOF OF NEGLIGENCE FOR DELAY OR DENIAL OF A BENEFIT?

By contrast with current common law bad faith, the IFCA does not clearly state any additional requirement that an unreasonable delay or denial be accompanied by some form of bad faith, intentional conduct or reckless indifference, or whether the word “unreasonable” itself means more than negligence. Defining common law bad faith, New Jersey’s Supreme Court stated in the Badiali case that: “A finding of bad faith against an insurer in denying an insurance claim cannot be established through simple negligence. … Moreover, mere failure to settle a debatable claim does not constitute bad faith. … Rather, to establish a first-party bad faith claim for denial of benefits in New Jersey, a plaintiff must show that no debatable reasons existed for denial of the benefits.” New Jersey’s federal courts have frequently interpreted the fairly debatable bad faith standard as requiring proof the insurer knew its conduct was unreasonable or recklessly disregarded that fact. This includes both pre and post Badiali cases, including recent decisions.

Thus, without further explanation, it is not wholly clear whether the IFCA is subject to a negligence standard, or if IFCA unreasonableness is meant to include the additional common law elements that go beyond mere negligence. If the standard is negligence, then it would be a misnomer to call this a bad faith statute at all.

The statute proposes including treble damages and attorneys’ fees, and legal costs within its remedies, which some may argue are atypical punishments for merely negligent conduct. By comparison, however, the Consumer Fraud Act (CFA) provides for treble damages and attorney’s fees to address a wide range of conduct and mental states. Thus, the CFA punishes affirmative statements that constitute misrepresentations, irrespective of an intent to mislead; knowing material omissions, which do require proof of intent; or strict liability for regulatory violations.

WHAT STANDARDS APPLY TO UCSPA VIOLATIONS?

On this last point, the proposed IFCA encompasses the UCSPA, among other portions of section 17:29B-4. Within the UCSPA’s 14 subsections, reasonableness is often the express standard, however, some subsections simply describe the conduct constituting whether an insurer has acted improperly, or, in some instances it describes conduct beyond mere negligence. The UCSPA’s language includes, e.g.: “misrepresenting pertinent facts”, “failing to acknowledge and act reasonably promptly”, “failing to adopt and implement reasonable standards”, “refusing to pay claims without conducting a reasonable investigation based upon all available information”, “failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed”, “not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear”, “making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made”, “compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds”.

Despite using reasonableness standards in many instances, the UCSPA is underpinned by the notion that the misconduct is frequent enough to indicate a general business practice. This frequency requirement would seem to indicate that an element of intentionality or purposefulness is the fundamental reason that it is necessary to address the misconduct listed in all 14 subparts. In eliminating the frequency requirement, is the IFCA overlooking the idea that the UCSPA was designed to punish ongoing and continuous bad behavior because of its purposeful, intentional or reckless repetition, and not merely individual instances of negligent or unintentional behavior?

It is also interesting to compare subsection 17:29B-4(9)(f) and the new delay or denial IFCA cause of action. Under UCSPA subsection (9)(f): “Committing or performing with such frequency as to indicate a general business practice any of the following: … (f) ‘Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear….” This statutory language includes two concepts to make out misconduct: (1) a lack of good faith effort to settle when (2) it is unreasonable not to make a fair settlement. Under the proposed new law, the failure to pay a benefit due is actionable if it unreasonable, with no mention of any failure to act in good faith as an additional element.

THERE IS NO STATEMENT ON THE STANDARD OF PROOF

In addition, there is no explanation of what burden of proof applies, i.e., preponderance of the evidence or clear and convincing evidence. It should be noted that the preponderance of evidence standard applies to the Consumer Fraud Act and Insurance Fraud Prevention Act. Moreover, while statutory UCSPA violations require that the acts at issue be committed or performed “with such frequency as to indicate a general business practice,” that is not the proposed standard under the new law. Neither unreasonable delay or denial claims, nor actions for UCSPA violations, require “the claimant … to prove that the insurer’s actions were of such a frequency as to indicate a general business practice.”

IS THE PROPOSED LAW ONLY APPLICABLE TO FIRST PARTY BENEFIT PAYMENTS?

The “Statement” accompanying the bill begins: “This bill, the ‘New Jersey Insurance Fair Conduct Act,’ establishes a private cause of action for first-party claimants regarding certain unfair or unreasonable practices by their insurer.”

The bill defines: “’First-party claimant’” or ‘claimant’ means an individual, corporation, association, partnership or other legal entity asserting an entitlement to benefits owed directly to or on behalf of an insured under an insurance policy.” Under this definition, it certainly appears that a claimant must be an insured who has been denied an entitlement to a benefit. In unreasonable delay or denial cases, there must be a delay or denial “for payment of benefits under an insurance policy….” Thus, if no monetary benefit is due, the statute should not apply.

As to UCSPA cases, claims may be asserted “for any violation of the provisions of” the UCSPA’s sections. Based on the definition of claimant, one would assume that there must be some actual denial of a monetary benefit due to the insured for a claimant to raise a UCSPA based IFCA action. Regulatory oversight should apply where no benefit is denied, but the UCSPA has been violated. The statute could be clearer on this point.

In practice, first party claims are often contrasted with third party claims to mean that first party claims are direct claims by an insured to a carrier to indemnify losses suffered by the insured. Third party claims involve instances where an insured is subject to another’s claim for loss caused by the insured, or where the insured has been sued and is seeking a defense and indemnification for losses suffered by others attributable to the insured. Following these uses, and looking solely to the bill’s text, it is not perfectly clear whether the proposed new law covers third party claims, though it would seem not to cover such claims.

The definition of claimant includes “asserting an entitlement to benefits owed [1] directly to or [2] on behalf of an insured under an insurance policy.” A benefit “owned directly to” an insured clearly addresses first party claims. Some may try to argue that the phrasing, a benefit owed “on behalf of an insured,” could be interpreted to mean owed on behalf of an insured to those making claims against the insured. Moreover, is the duty to pay for the insured’s defense in a third party action a benefit owned directly to the insured?

This language could use some clarification in the statute’s text itself in the first instance if it is to become law, rather than going through years or decades of case law to answer these questions in the courts, as issues of statutory interpretation. One only need look at the effusion of statutory bad faith case law in neighboring Pennsylvania over the last 29 years to see the benefits of writing a clear statute in the first instance. If, as seemingly set forth in the “Statement,” the new law is only to cover traditional first party claims, then make that clear in the text. If it is to cover something more, then make that clear.

REMEDIES AND NEED FOR FURTHER CLARIFICATION

The proposed law provides that “upon establishing that a violation of the provisions of this act has occurred,” plaintiffs “shall be entitled to: (1) actual damages caused by the violation of this act; (2) prejudgment interest, reasonable attorney’s fees, and all reasonable litigation expenses; and (3) treble damages.”

The new law uses the phrase “upon establishing”, which again points out (1) the absence of what the burden of proof is to establish a cause of action under this statute; (2) whether the statute requires negligence, some form, intent, recklessness or bad faith; (3) whether the unreasonableness must be subjective or objective; and/or (4) whether there could be instances of strict liability.

Moreover, these remedies are mandatory and not discretionary because plaintiffs “shall be entitled” to the listed relief. Again, it arguably would be out of the ordinary to award mandatory treble damages and attorney’s fees upon proof of negligence only.

As to the meaning of “actual damages”, this relief would appear to be redundant with an ordinary breach of contract claim if limited to benefits due and not paid under the policy. However, the meaning of the term is not defined in the proposed new law. Does the term “actual damages” also encompass consequential damages? Does it encompass emotional distress damages? Again, the lack of definition opens the door to years of litigation over such issues.

Some other loose ends: Looking at issues arising in other state’s interpreting bad faith statutes, it may be useful to include an express statute of limitations and what portions of the statute go to the jury or not.

We will be following the legislative process and reporting on the proposed IFCA as it develops.

DECEMBER 2016 BAD FAITH CASES: NO BAD FAITH WHERE EVIDENCE FAILED TO SHOW LACK OF REASONABLE EVALUATION OR INVESTIGATION; NO PRIVATE ACTION UNDER UNFAIR CLAIMS SETTLEMENT PRACTICES ACT (New Jersey Federal)

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In this Superstorm Sandy property damage case, the insured alleged bad faith, among other claims. The court found the insured could not overcome the “fairly debatable” standard, and make a case for an unreasonable denial that was reckless or intentional in nature.

The insured only provided invoices, an itemized bill for the repair work performed, and corresponding proofs of payment in support of its claim; but none of those documents provided evidence that the property damage at issue occurred as a result of water backup and sump overflow as opposed to flooding. Nor did these documents do anything to contradict the results of the insurer’s investigation and inspection to determine the cause of the reported damages. There was “nothing evidential to suggest that Defendant lacked a reasonable basis for denying Plaintiff’s claim or that Defendant had knowledge of or showed a reckless disregard of the lack of a reasonable basis for denying the claim.” Summary judgment was entered for the insurer.

In addition, the insured had alleged a violation of the Unfair Claims Settlement Practices Act, apparently claiming bad faith; however, there is no private cause of action under that statute. Thus, summary judgment was granted on that issue as well.

Date of Decision: November 15, 2016

Carevel, LLC v. Aspen Am. Ins. Co., No. 13-7581, 2016 U.S. Dist. LEXIS 157919 (D.N.J. Nov. 15, 2016) (Walls, J.)

MAY 2016 BAD FAITH CASES: NO PRIVATE RIGHT OF ACTION UNDER NEW JERSEY’S INSURANCE TRADE PRACTICES ACT OR UNFAIR CLAIMS SETTLEMENT PRACTICE ACT (New Jersey Federal)

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In GEICO v. Korn, the court addressed what it called a muddled claim that appeared to be for bad faith.  The claim referenced both New Jersey’s Insurance Trade Practices Act and Unfair Claims Settlement Practices Act, neither of which allow for a private cause of action. The insured also pleaded that the insured had “failed to act in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become perfectly clear.” The court dismissed the insureds’ claim without prejudice, and with leave to amend.

Date of Decision:  April 21, 2016

GEICO v. Korn, 2016 U.S. Dist. LEXIS 53210 (D.N.J. Apr. 21, 2016) (Bumb, J.)

APRIL 2016 BAD FAITH CASES: (1) NO CONSUMER FRAUD ACT CLAIM FOR DENIAL OF BENEFITS; (2) NEGLIGENCE CLAIM UNDER UNFAIR CLAIMS SETTLEMENT PRACTICES ACT NOT ASSIGNABLE OR ACTIONABLE; AND (3) NO BAD FAITH CLAIM WHERE QUESTION WHETHER PROPERTY DAMAGE FELL WITHIN POLICY PERIOD WAS FAIRLY DEBATABLE (New Jersey Federal)

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In Nationwide Mutual Insurance Company v. Caris, the underlying facts involved the alleged fraudulent sale of a property with contamination.  The insureds entered a consent judgment and assigned their rights against the carrier to the buyers.  The buyers then brought various claims against the insurer, including bad faith claims.

The court dismissed a New Jersey Consumer Fraud Act claim because the allegation was that the insurer failed to provide benefits, not that it procured the insurance policy through fraud.

The assignees also had raised a negligence per se claim for improper claims handling and failure to give timely notice that no coverage would be provided.  The court found that the assignees had no standing to bring a claim based upon negligence, as such a claim could not be assigned to them prior to judgment being entered.

Moreover, to the extent this was pleaded as an alternative to asserting a bad faith claim, no such cause of action exists under New Jersey law: “[A]n insurance company may be liable to a policyholder for bad faith in the context of paying benefits under a policy. The scope of that duty is not to be equated with simple negligence.”

Finally, “there is no private right of action for policyholders against their insurers based on UCSPA violations or negligence.”

Turning to the bad faith claim: the insured “must show: (1) the insurer lacked a reasonable basis for its denying benefits, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”  New Jersey courts apply the “fairly debatable” standard, meaning  “if there are material issues of disputed fact which would preclude summary judgment as a matter of law, an insured cannot maintain a cause of action for bad faith.”

“In the case of processing delay, bad faith is established by showing no valid reasons existed to delay processing the claim and the insurance company knew or recklessly disregarded the fact that no valid reasons supported the delay.” This is essentially the same as the fairly debatable standard, and the “mere failure to settle a debatable claim does not constitute bad faith.”

Despite a litany of bad faith allegations, the assignees could not establish the insurer lacked a reasonable basis to deny coverage, or that its coverage position – that there was no property damage caused by an occurrence during the policy period – was unreasonable.

Thus, “[w]hen a carrier proffers ‘plausible reasons for the denial of coverage’ and ‘demonstrates that there is, at the very least, genuine questions regarding whether [an insured’s] claims fall within the coverage provided,’ dismissal of a related bad faith claim is proper, even on a motion to dismiss.”

The burden in this case was on the insureds to prove the property damage occurred during the policy period, and the court found that issue was fairly debatable.  Thus, it granted the motion to dismiss the bad faith claim.

Date of Decision: March 14, 2016

Nationwide Mut. Ins. Co. v. Caris, No. 14-5330, 2016 U.S. Dist. LEXIS 33407 (D.N.J. Mar. 14, 2016) (Rodriguez, J.)

 

JUNE 2015 BAD FAITH CASES: COURT DISMISSES CLAIM FOR BAD FAITH BREACH OF A SURETY BOND BECAUSE NO SUCH CAUSE OF ACTION IS RECOGNIZED IN NEW JERSEY (New Jersey Federal)

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In U.S. Sewer & Drain, Inc. v. Earle Asphalt Company, the Court dismissed a claim for bad faith breach of a surety bond after the Court found that no such cause of action is recognized in New Jersey. The case arose out of a public construction contract to widen and improve a section of public highway. As required by the New Jersey Bond Act, a payment bond to the New Jersey Turnpike Authority (“NJTA”) was required.

The contractor/defendant arranged for the plaintiff subcontractor to “provide materials and services for the installation of pipelining as part of the project.” However, the contractor refused to pay the subcontractor after a dispute arose about job performance. The subcontractor subsequently made a claim on the payment bond, which the surety refused to pay. The subcontractor brought claims against both the contractor and the surety, including a claim for bad faith breach of a surety bond. The surety sought to dismiss this claim because New Jersey does not recognize a cause of action for bad faith breach of a surety bond.

The contractor cited a case in which the Appellate Division rejected an argument that bail bond issuers were exempt from New Jersey’s Unfair Claims Settlement Practices Act (“USCPA”). The Court found this case to be irrelevant because the statutory provision at issue there did not create a private cause of action. Moreover, the ruling in that case concerning the applicability of the USCPA to sureties was superseded by N.J.A.C. 11:2-17.2.

The Court addressed the only other case finding a cause of action for bad faith breach of a surety bond, which “noted that the New Jersey Supreme Court had recognized the bad faith cause of action against insurers” in a case decided in 1993. However, neither the New Jersey Supreme Court nor any other state court in New Jersey has followed this holding, and two more recent decisions explicitly declined to follow the ruling.

Therefore, the Court found that no cause of action for bad faith breach of a surety bond is recognized in New Jersey, and dismissed the bad faith claim.

Date of Decision: June 1, 2015

U.S. Sewer & Drain, Inc. v. Earle Asphalt Co., Civ No. 15-1461, 2015 U.S. Dist. LEXIS 70178 (D.N.J. June 1, 2015) (Thompson, J.)

 

MARCH 2015 BAD FAITH CASES: NEW JERSEY SUPREME COURT FINDS NO BAD FAITH WHERE INSURER RELIED UPON UNPUBLISHED APPELLATE DIVISION OPINION IN TAKING ACTION, AND WHERE POLICY LANGUAGE MADE INSURER’S POSITION FAIRLY DEBATABLE; COURT RESTATES NEW JERSEY LAW ON FIRST PARTY BAD FAITH CLAIMS (New Jersey Supreme Court)

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In Badiali v. New Jersey Manufacturers Insurance Group, the New Jersey Supreme Court issued its second opinion in a single day involving first party insurance bad faith claims.  The insured was injured by an uninsured motorist.  The insured had two insurers.  The matter went to arbitration on the uninsured motorist claim, and the insured was awarded $29,148.62.  One of the insurers paid its half of the award, $14,574.31, but the other insurer appealed.  The policy provided that awards under $15,000 were binding, but awards over $15,000 could be appealed.  The insured brought a bad faith claim, on the basis that the award was less than $15,000 and was binding.

Based upon an unpublished Appellate Division opinion, the appealing insurer took the position that the number used to determine the appeal was the total award, i.e., $29,148.62, not the amount actually due from the particular insurer.  The court found that this made the insurer’s position fairly debatable, and there was no bad faith.  The issue was not whether the Appellate Division’s decision was legally correct, but whether the insurer could reasonably rely upon that decision in taking the appeal. Alternatively, the Court held that the insurer’s reading of the policy language was reasonable, and thus its position was fairly debatable for this reason as well.

That being said, the Court then went on to clarify the law for future cases. It held that “any reference in a policy of insurance to the statutory $15,000 policy limit as the basis for rejecting an arbitration award applies only to the amount that the insurance company is required to pay, not to the total amount of the award.”

Finally, we will quote the Court’s summary of the law on the duty of good faith and fair dealing, including statutory references, for the value of having the Supreme Court’s recent restatement of that law.

“All contracts impose an implied obligation of good faith and fair dealing in their performance and enforcement. …. The New Jersey Legislature has attempted to codify these principles, particularly in the insurance industry, by defining what is considered to be unfair or deceptive business practices in the area of insurance claims settlement. See N.J.S.A. 17:29B-4(9). Such practices include: ‘[r]efusing to pay claims without conducting a reasonable investigation based upon all available information[,]’ N.J.S.A. 17:29B-4(9)(d); ‘[f]ailing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed[,]’ N.J.S.A. 17:29B-4(9)(e); ‘[c]ompelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds[,]’ N.J.S.A. 17:29B-4(9)(g); and, finally, ‘[n]ot attempting to negotiate in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear[,]’ N.J.S.A. 17:29B-4(9)(f) (emphasis added).”

“Good faith is generally defined as ‘honesty in fact in the conduct or transaction concerned.’ N.J.S.A. 12A:1-201(19). The good faith obligations of an insurer to its insured run deeper than those in a typical commercial contract. Unlike with a typical commercial contract, in which ‘[p]roof of bad motive or intention” is vital to an action for breach of good faith, … an insurer’s breach of good faith may be found upon a showing that it has breached its fiduciary obligations, regardless of any malice or will….’”

“One inherent fiduciary obligation of every insurer is the duty to settle claims. …. Whether an insurer has acted in bad faith and thereby breached its fiduciary obligation in connection with the settlement of claims ‘must depend upon the circumstances of the particular case.’” “A finding of bad faith against an insurer in denying an insurance claim cannot be established through simple negligence. …. Moreover, mere failure to settle a debatable claim does not constitute bad faith. …. Rather, to establish a first-party bad faith claim for denial of benefits in New Jersey, a plaintiff must show “that no debatable reasons existed for denial of the benefits.”’”

“Under the salutary ‘fairly debatable’ standard enunciated in Pickett, ‘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.’”

Date of Decision:  February 18, 2015

Badiali v. New Jersey Mfrs. Ins. Group, A-48 September Term 2012, 071931, 2015 N.J. LEXIS 133 (N.J. February 18, 2015) (Fernadez-Vina for unanimous court)

MAY 2014 BAD FAITH CASES: DISTRICT COURT DENIES MOTION TO REMAND WHERE BAD FAITH CLAIMS COULD RESULT IN PUNITIVE DAMAGES AWARD THAT WOULD EXCEED $75,000 (New Jersey Federal)

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In Carevel, LCC v. Aspen American Insurance Company, a Super Storm Sandy coverage case, the court addressed the issue of whether to remand the matter to state court for failure to meet the federal jurisdictional minimum of $75,000.

The complaint asserted claims for breach of contract; failure to promptly effectuate a settlement to conduct an investigation to justify its refusal, forcing the insured to seek resolution through litigation; and gross misconduct, bad faith and a breach of defendants’ duty of good faith and fair dealing owed to Plaintiff as established by New Jersey’s Unfair Settlement Practices Act, N.J.S.A. 17:29B-1 et seq., N.J.S.A. 17B:30-13.1 and N.J.A.C. 11:2-17.1 et seq. The insured sought damages, interest and costs of suit, attorney’s fees and punitive damages.

Under New Jersey statutory law, where punitive damages are permitted, there may be an award that is up to 5 times compensatory damages. The court found a claim had been stated that could provide for punitive damages. The record included an invoice for $23,130 that could constitute compensatory damages. Under the case law and the punitive damages statute, punitive damages could rise as high as five times that sum; and therefore a jury could return punitive damages of as much as $115,650.

Thus, the jurisdictional minimum was met as the insured plaintiff could not demonstrate to a “legal certainty” that the damages would not exceed $75,000.

Date of Decision: May 14, 2014

Carevel, LLC v. Aspen Am. Ins. Co., No. 2:13-cv-7581 (WHW), 2014 U.S. Dist. LEXIS 65928 (D.N.J. May 14, 2014) (Walls, J.)

APRIL 2014 BAD FAITH CASES: AFTER FINDING INSURER IMPROPERLY DENIED COVERAGE, COURT FOUND SUMMARY JUDGMENT MOTION ON BAD FAITH CLAIM PREMATURE, AS THE RECORD WAS INSUFFICIENT TO DETERMINE IF THE INSURER ACTED WITH KNOWLEDGE OR RECKLESS DISREGARD OF THE LACK OF A REASONABLE BASIS FOR DENYING THE INSUREDS’ CLAIM (New Jersey Federal)

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In Tripoldi v. Universal North American Ins. Co., the insureds had attempted to construct a water proofing system in their basement, the results of which ultimately damaged the structure of a basement wall in their home to the degree that it became uninhabitable. They made a claim and the insurer denied covered.  The insured brought a breach of contract and bad faith suit.

As to the latter, they asserted that there was no debatable reason why the loss should not have been covered under the policy, and that the denial was arbitrary, capricious, and in direct contravention of the insurer’s own engineering report, and the stated cause of loss in that report.

The insureds also alleged that the carrier’s conduct was outrageous, and violated several provisions of the New Jersey Unfair Claims Settlement Practice Act and its accompanying regulations.

The coverage issue involved whether the structural damage to a wall that led to the home’s condemnation constituted a “collapse”. In the absence of any policy definition, under New Jersey law, the term collapse did not require an actual fall, but “any serious impairment of structural integrity that connotes imminent collapse threatening the preservation of the building as a structure or the health and safety of occupants and passers-by.”

However, the policy at issue did define “collapse”, and the issue was whether the damage sustained to the basement wall constituted an abrupt falling down or caving in of any part of a building, which would not require the falling down of the entire building.  All parties further had the understanding that the basement wall at issue never collapsed completely in.

After a lengthy analysis, the court found that the circumstances met the policy definition of collapse, and summary judgment was granted to the insured on coverage.

Moving to the bad faith claim, the court stated that in the context of first-party insurance claims, the Supreme Court of New Jersey has held that “[t]o show a claim for bad faith, a plaintiff must show [1] the absence of a reasonable basis for denying benefits of the policy and [2] the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.”

Establishing a bad faith claim requires that a  “plaintiff must show two elements: (1) the insurer lacked a ‘fairly debatable’ reason for its failure to pay a claim, and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim.”

In addition, a “plaintiff may also demonstrate an insurer’s bad faith when the insurer unreasonably delays the processing of a valid claim, and the insurer knows or recklessly disregards the fact that the delay is unreasonable.  However, neither negligence nor mistake may constitute bad faith on behalf of an insurer. “Rather, it must be demonstrated that the insurer’s conduct is unreasonable and the insurer knows that the conduct is unreasonable, or that it recklessly disregards the fact that the conduct is unreasonable.”

In other words, to show that an insurer has acted in bad faith, a plaintiff must demonstrate that no fairly debatable reason exists for denying or delaying the processing of a claim. “Under the ‘fairly debatable’ standard, a claimant must establish a right to summary judgment on the substantive claim in order to be entitled to assert a claim against the insurer for bad faith refusal to pay [or delay in processing].”

Both parties moved for summary judgment on the bad faith issue.  The insureds asserted that the insurer conducted a grossly inadequate investigation into their loss, affirmatively misrepresented the findings of an expert report in its letter to the insureds denying coverage, added conditions to coverage that were not otherwise required under the policy, and affirmatively misrepresented that engineers were present at the site inspection.

However, the court found that the insureds failed to provide the Court with sufficient evidence that the insurer acted with reckless indifference to the proofs the insureds had submitted.

Still, the court did not rule for the insurer. It found that the record and the documents submitted in support of both parties’ motions did not present sufficient evidence for the Court to make a determination on whether the insurer acted with knowledge or reckless disregard of the lack of a reasonable basis for denying the insureds’ claim.

Procedurally, at that point in time, the insureds had not conducted any depositions of any of the insurer’s employees or any of the individuals involved in the investigation and evaluation of their claim. Thus, the summary judgment motion was premature.

Date of Decision: December 31, 2013

Tripoldi v.  Universal North America Ins. Co ., U. S. Dist. Court, District of New Jersey, Civ. No. 12-1828 (D.N.J. Dec. 31, 2013) (Hillman, J.)