Archive for the 'NJ – Claims Handling Procedures' Category

OCTOBER 2017 BAD FAITH CASES: NO BAD FAITH WHERE INSUREDS MERELY ALLEGED A DENIAL OF CLAIMS UNDER THE POLICY (New Jersey Federal)

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The insureds submitted claims under their homeowner’s insurance policy after Hurricane Irene damaged the property in August 2011, and after Hurricane Sandy damaged the property in October 2012. After the insurer initially denied coverage, the insureds filed a declaratory judgment action in state court seeking coverage under the policy. The insureds also alleged breach of contract and breach of the covenant of good faith and fair dealing, among other claims. The insurer moved to dismiss the breach of the covenant of good faith and fair dealing claim, among others.

The Court reiterated the test to establish a claim for bad faith in New Jersey. The insured must show “‘(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.’” The Court held, “[the insureds] do not allege that [the insurer] knowingly or with reckless disregard denied their claim without a ‘fairly debatable reason’ for doing so.” The insureds merely alleged that they suffered property damage because of Hurricanes Irene and Sandy, and that the insurer denied these claims in breach of the covenant of good faith and fair dealing. Such conclusory allegations cannot defeat an insurer’s motion to dismiss. However, the Court gave the insureds an opportunity to amend their complaint.

Additionally, the Court dismissed the insureds’ claim for coverage as to the Hurricane Irene damage because these claims are facially untimely, and the insured failed to plead facts suggesting that equitable tolling should apply. Lastly, the Court denied the insurer’s motion to dismiss the claim for coverage of the Hurricane Sandy damage due to a factual dispute as to whether the insured’s failure to cooperate prejudiced the insurer.

Date of Decision: September 19, 2017

Kurz v. State Farm Fire & Cas. Co., No. 16-8681, 2017 U.S. Dist. LEXIS 152540 (D. N.J. Sept. 12, 2017) (Bumb, J.)

 

OCTOBER 2017 BAD FAITH CASES: COMPLAINT STATES PLAUSIBLE BAD FAITH CLAIM BASED ON CLAIMS HANDLING; COURT SEVERS AND STAYS BAD FAITH CLAIM (New Jersey Federal)

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The insured alleged that she suffered serious bodily injuries after a rear-end collision. The vehicle at fault only had $25,000 in available coverage, and the insured’s UIM policy contained limits of $100,000 per person and $300,000 per accident. Alleging injuries amounting to $75,000 in value, the insured filed a UIM claim with the insurer. The insured allegedly forwarded all documentation supporting her injuries to the insurer’s claims adjuster, but the insurer ignored her documentation or acted with reckless indifference to the documentation provided. She filed a claim against the insurer for breach of the implied duty of good faith and fair dealing.

The insured moved to dismiss this claim, arguing that (1) the Court lacked federal subject matter jurisdiction because the insured’s claim does not exceed $75,000; and (2) that the insured failed to state a claim upon which relief can be granted. The insured also moved to sever and stay the insured’s bad faith claim, pending the disposition of the insured’s claim for breach of contract. (1) The Court denied insurer’s motion to remand, reasoning that “[the insured’s] bad faith claim, if successful, includes the potential for an award of consequential damages and punitive damages . . .” that would exceed the jurisdictional threshold of $75,000.

(2) The Court denied the insured’s motion to dismiss, reasoning that the complaint “sets forth numerous examples of bad faith conduct that sufficiently allege[s] a ‘reckless disregard’ for [the insured’s] rights.” These allegations included delay tactics, conducting an improper investigation, and failing to evaluate medical records in a reasonable manner.

(3) Finally, the Court granted the insurer’s motion to sever and stay the bad faith claim from the insured’s breach of contract claim, citing judicial economy and avoiding prejudice to the insurer.

Date of Decision: September 12, 2017

Gussman v. Government Employees Insurance Company, No. 16-8563, 2017 U.S. Dist. LEXIS 146995 (D. N.J. Sept. 12, 2017) (Rodriguez, J.)

SEPTEMBER 2017 BAD FAITH CASES: NO BAD FAITH WHERE DENIAL OF PIP BENEFITS STEMMED FROM EXHAUSTION OF THE POLICY LIMITS (New Jersey Appellate Division)

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The insured received medical treatment from several providers after sustaining injuries in a May 2013 auto accident. The policy provided up to $15,000 in PIP benefits per accident. The insurer denied a request for an $8,527.07 payment to Hackensack Surgery Center (“HSC”), as subrogee of the insured, because it determined that the treatment was not medically necessary. HSC then filed a demand for arbitration.

Prior to the arbitration hearing, the insurer advised that only a balance of $2,132.74 remained in available PIP benefits due to prior payments totaling $12,867.26. During the pendency of HSC’s claim, Thermocare Plus, LLC (“Thermocare”), another medical provider of the insured, utilized the insurer’s internal appeals process to seek a reversal of insurer’s earlier denial of its bill totaling $2,032.74. On August 21, 2015, the insurer advised Thermocare that its previous denial was overturned, and that it would process Thermocare’s bill. On the same day, the insurer received the HSC arbitration award that the HSC treatment was medically necessary, and awarded $8,438.58, plus interest, attorney’s fees, and costs to HSC. However, the arbitration panel stated that the award “was subject to ‘the policy limits for medical payments, still available to [HSC] at the time of the award.’”

Seven days later, the insured paid Thermocare $2,032.74. The insurer then complied with the arbitration award, and processed a payment of $100 to HSC, which reflected the amount of remaining PIP benefits. HSC then filed an order to show cause, arguing that its payment had priority. HSC sought an additional payment of $2,036.99 and attorney’s fees and costs. The trial judge ordered the insurer to pay HSC an additional $2,036.99, which represented the amount remaining on the arbitration award. The judge reasoned that the insurer did not “engage[] in any sort of bad faith. . .”, but the insurer’s payment decisions did not achieve an equitable outcome. The trial judge denied HSC’s request for attorney’s fees.

On appeal, the insurer argued that the trial judge’s decision ran counter to existing state law because it had already exhausted the PIP policy limits. Furthermore, the insurer argued that it had 35 days to challenge the arbitration award, and thus was under no obligation to comply with the award because it already approved Thermocare’s payment.

In articulating the collateral source rule, which governs the payment of PIP benefits under New Jersey law, the Appellate Division stated that the insurer is required “to pay PIP benefits immediately upon [a] determination that the loss is due and owing, without consideration that the loss may also be covered by another source. . . .” The Appellate Division held that HSC is entitled to the additional $2,036.99 payment, because HSC’s bill predated Thermocare’s; HSC rendered services prior to Thermocare; the insurer received HSC’s bill prior to Thermocare’s; and because Thermocare’s bill remained unpaid as of the date of the arbitration award. Citing the “broad discretion” given to trial judges when deciding whether to award attorney’s fees, and finding no abuse of discretion, the Appellate Division declined to overrule the judge’s decision to deny HSC its requested attorney’s fees and costs.

Date of Decision: September 5, 2017

Hackensack Surgery Ctr. V. Allstate Ins. Co., No. A-3896-15T3, 2017 N.J. Super. Unpub. LEXIS 2200 (N.J. App. Div. Sept. 5, 2017) (Reisner and Sumners, JJ.)

SEPTEMBER 2017 BAD FAITH CASES: NO BAD FAITH WHERE CLAIM DENIAL DEBATABLE, AND NO PUNITIVE DAMAGES CLAIM POSSIBLE (District of New Jersey)

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The insureds purchased a property in 2004. Initially, the insureds did not know that the property contained an underground heating oil tank. In May of 2014, the insureds had the tank removed. During removal, a municipal inspector detected a fuel oil discharge on the property. The discharge resulted in soil and groundwater contamination, and the insureds incurred significant remediation costs.

The insureds submitted claims for the remediation under their homeowners policies, to two insurers. The insurers rejected the claim because the loss was not a sudden and accidental occurrence. Insurer I’s expert report stated that the loss was not “a result from a quick, abrupt, or catastrophic event.”

The insureds filed a coverage action against Insurers I and II, and asserted claims of bad faith. The insurers moved for summary judgment on the bad faith claims, arguing that the insureds failed to show the absence of a reasonable basis for denial of the claim. The insureds did not contest insurers’ argument that its position was debatable, and as such, the Court deemed the issue conceded. Thus, the Court granted Insurer I and II’s motion for summary judgment as to the bad faith claim.

Insurer II also moved for summary judgment as to the insureds’ claim for punitive damages. Because the standard for punitive damages “is a showing by clear and convincing evidence of some egregious circumstances or wantonly reckless or malicious conduct by the insurer[,]” an even more exacting standard than the one used for bad faith, the Court struck this claim.

Date of Decision: August 17, 2017

Benjamin v. State Farm Ins. Co., No. 15-4123, 2017 U.S. Dist. LEXIS 131078 (D. N.J. Aug. 17, 2017) (Simandle, J.)

SEPTEMBER 2017 BAD FAITH CASES: NO BAD FAITH ABSENT “BAD MOTIVE OR INTENTION”; INDEPENDENT BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM IMPROPER (District of New Jersey)

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Plaintiff acquired an Allstate annuity account from her late father’s estate in 2005, and alleged that insurer unlawfully drained funds from the account. Insurer received four separate requests to transfer funds to a savings account, and ultimately transferred funds totaling over $334,932 to that account. The plaintiff and her ex-husband jointly owned the savings account, and plaintiff alleged that her signature was forged on each request.

Plaintiff sued the insurer for breach of the covenant of good faith and fair dealing, breach of warranty, and negligent hiring and supervision, among other claims. The insurer moved to dismiss. The Court stated that “bad motive or intention” is an essential element of any claim for breach of the covenant of good faith and fair dealing. The insurer argued that the plaintiff failed to allege any facts showing bad motive or intention. The Court agreed, and held that, “[n]othing in Plaintiff’s Complaint alleges that [insurer] acted with the intention of preventing Plaintiff from receiving her expected contractual benefits.”

The insurer further argued that the plaintiff failed to allege facts justifying a claim for breach of the covenant of good faith and fair dealing independent of a breach of contract claim. Citing New Jersey case law, the insurer argued that an independent claim is only proper “(1) to allow the inclusion of additional terms and conditions not expressly set forth in the contract, but consistent with the parties’ contractual expectations; (2) to allow redress for a contracting party’s bad faith performance of an agreement, when it is a pretext for the exercise of a contractual right to terminate, even where the defendant has not breached any express term; and (3) to rectify a party’s unfair exercise of discretion regarding its contract performance.” Because the plaintiff did not argue that any of these circumstances warranted an independent breach of the covenant of good faith and fair dealing claim, along with a breach of contract claim, the Court dismissed the claim.

The Court also dismissed the plaintiff’s breach of warranty claim, based upon N.J.S.A. § 12A:3-406, because that statute provides only a defense rather than a basis for liability. The Court further dismissed the plaintiff’s negligent hiring and supervision claim.

Date of Decision: August 18, 2017

Adams v. Allstate Life Insurance Co., No. 16-9465, 2017 U.S. Dist. LEXIS 132022 (D. N.J. Aug. 18, 2017) (Kugler, J.)

AUGUST 2017 BAD FAITH CASES: PLAUSIBLE BAD FAITH CLAIM WHERE INSURER FAILED TO PROMPTLY NEGOTIATE SETTLEMENT WITHIN POLICY LIMITS, WITH SOME INTERESTING DICTA ON COLLUSION AND BAD FAITH SETTLEMENTS (Superior Court of New Jersey Appellate Division) (Unpublished Opinion)

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This case provides an exposition of the duty of good faith and fair dealing under Rova Farms, in the context of settlement negotiations where the potential loss exceeds policy limits, and the matter settled well above policy limits.

The insured rear-ended another vehicle seriously injuring that vehicle’s four passengers, who later brought suit against him. The insured’s policy limits provided $25,000 per person or $50,000 per accident, but the documented value of the injury claims alleged far exceeded those limits. The personal injury action eventually settled, with a consent judgment against the insured for $1.155 million dollars.

Prior to that settlement, the personal injury plaintiffs’ counsel made a policy limits settlement demand on the tortfeasor’s insurer. Eleven months later, and after an arbitration award against the insured for $1.3 million, the insurer belatedly tendered its policy limits. Plaintiffs’ counsel rejected this offer, and counteroffered to settle for the policy limits, adding a demand for an assignment of the insured’s breach of good faith and fair dealing against the insurer. The insurer rejected this counteroffer.

The personal injury plaintiffs and the insured subsequently settled by agreeing to a consent judgment in the amount of $1.155 million, with a further agreement that the insured would pursue a bad faith claim against its insurer.

As agreed, the insured brought a bad faith complaint. He alleged the insurer failed to respond to the settlement offer; failed to seek an extension of time to reply to the offer; and that the insurer negligently or intentionally failed to advise the insured of the settlement offer that was within the available policy limits. The insurer sought to dismiss the claim, and the trial court denied that motion.

On appeal, the Appellate Division stated that insurers have “a positive fiduciary duty to take the initiative and attempt to negotiate a settlement within the policy coverage[,]” and “[a]n insurer’s fiduciary duty requires it ‘to make an honest, intelligent and good faith evaluation of the case for settlement purposes and to weigh the probabilities in a fair manner.’” For purposes of a motion to dismiss, the appellate court would not rule on the issue of a putative collusive settlement, but recited the rule that an insurer could be bound to pay on a settlement sum that was reasonable and made in good faith. It held the bad faith complaint alleged sufficient facts and circumstances to make out a bad faith claim, by alleging that the insurer did not look to the insured’s interests and take the initiative in attempting to negotiate a settlement offer for its insured within the policy limits.

In dicta, the appellate court stated that there were potential issues on the collusion allegations that the trial court may have to allow the insurer to explore. “We add that Insurance Council’s [sic] assertion the settlement was a product of collusion and bad faith raises some interesting issues. One interpretation of the settlement agreement is that the personal injury plaintiffs will file warrants of satisfaction immediately upon conclusion of this bad faith action, regardless of the outcome. That construction suggests that if plaintiffs recover nothing under the bad faith action, the personal injury plaintiffs will collect nothing further… If that is so, then there is a significant question as to whether [the insured] will ever have to pay a sum in excess of the policy limits. Resolution of that issue may have a bearing on the viability of plaintiffs’ bad faith cause of action. We express no opinion as to that issue. The trial court may decide to conduct discovery and entertain dispositive motions on that issue before permitting the parties to engage in other extensive discovery. We leave that matter to the trial court’s sound discretion.”

Date of Decision: July 20, 2017

Ellington v. Cure Auto Ins., No. A-2470-16T4, 2017 N.J. Super. Unpub. LEXIS 1831 (N.J. Ct. App. July 20, 2017) (Currier, Geiger, Nugent, JJ.) (Unpublished)

MAY 2017 BAD FAITH CASES: FINEMAN, KREKSTEIN & HARRIS OBTAINS DISMISSAL OF BAD FAITH CLAIM WHERE COMPLAINT FAILS TO ALLEGE ACTIONABLE CLAIM OF IMPROPER INVESTIGATION (New Jersey Federal)

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Fineman, Krekstein & Harris obtained dismissal of a bad faith claim against the insurer where the insured’s complaint did not set out sufficient facts to make a plausible claim for an inadequate investigation.

The court observed that under the federal rules, courts carry out a three-tiered test to determine if a complaint can survive a motion to dismiss: (1) the court “must take note of the elements the plaintiff must plead to state a claim.”; (2) “the court ‘should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.”; and (3) “when there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

In applying this process, the court observed that under New Jersey law, a bad faith plaintiff must show both “the absence of a reasonable basis for denying the claim for coverage; and … that the insurer knew or recklessly disregarded its absence of a reasonable basis.” Further, “if an insurance company’s reasons for denying coverage are ‘fairly debatable,’ then the insurance company cannot be liable for bad faith.”

In this case, the issue was whether the insured’s property loss was the result of vandalism or theft. The insurer’s investigator concluded, after providing the details for his reasoning, that the loss was due to uncovered theft. The insurer denied coverage on that basis. The insured alleged coverage was denied in bad faith on the alleged basis that the insurer did not “undertake an independent investigation into the cause of the alleged loss.”

The court rejected this argument. It found that the insured “failed to allege facts demonstrating that [the insurer] lacked a reasonable basis for denying the claim for coverage, or that it knew or recklessly disregarded its absence of a reasonable basis.” There was no dispute that an investigation was conducted and the investigator concluded the loss was due to theft, not vandalism. There were no allegations of fact to support a claim that the investigation was conducted in bad faith. Rather, the pleadings merely showed that the insured disagreed with how the insurer conducted its investigation. Even if this alleged negligence, “allegations of simple negligence or mistake cannot support a claim for bad faith.”

The court stated: “Indeed, there are no factual allegations indicating that [the insurer] conducted a sham investigation in order to wrongfully deny [the] claim, or that [the] investigation was so woefully deficient that it should have known it lacked a reasonable basis to deny coverage.”

Thus, the motion to dismiss was granted, the court adding that the insured “may move to amend its counterclaim should discovery later reveal bad faith conduct….”

Date of Decision: April 25, 2017

American Southern Home Insurance Company v. Unity Bank, No. 16-3406, 2017 U.S. Dist. LEXIS 62381 (D.N.J. Apr. 25, 2017) (Wolfson, J.)

Hema Mehta of Fineman, Krekstein & Harris was defense counsel.

 

APRIL 2017 BAD FAITH CASES: A COMPLAINT ALLEGING BAD FAITH MUST CONTAIN FACTUAL ALLEGATIONS OF KNOWING OR RECKLESS CONDUCT (New Jersey Federal)

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In our post earlier today, we noted a Pennsylvania Federal Court dismissing bad faith claims for conclusory pleadings, without prejudice. Below is a New Jersey Federal Court doing the same.

Plaintiffs are homeowners who purchased an insurance policy, which they alleged entitled them to coverage for property damage sustained by their home. After the Insurer denied coverage, the Plaintiffs brought suit alleging breach of contract and bad faith. The Insurer later filed a Motion to Dismiss as to the bad faith claim.

The Court granted the motion and agreed that Plaintiffs had failed to state a cognizable bad faith claim. The Court recognized that New Jersey defines bad faith as: (1) the lack of a “fairly debatable” reason for failing to pay a claim, and (2) knowing or reckless disregarded for the lack of a reasonable basis in denying the claim. The lone allegation in the Complaint as to the second element was Plaintiffs’ assertion that the Insurer had “reckless disregard for the rights of the Plaintiffs.”

The Court held that this conclusory allegation was insufficient to state a claim because it left “the Court to infer reckless indifference from the fact that Defendant denied coverage.” The Court declined to take such a leap. The Complaint lacked any allegations explaining how the Insurer acted recklessly, and the Court refused to infer bad faith conduct simply because the Insurer had denied coverage. As the Court explained, this was they very type of speculative pleading forbidden by Twombly and Iqbal. Thus, the Court dismissed the claim, without prejudice.

Date of Decision: April 3, 2017

Williams v. State Farm Fire & Cas. Ins. Co., No. 16-9028, 2017 U.S. Dist. LEXIS 50261 (D.N.J. Apr. 3, 2017) (Rodriguez, J.)

MARCH 2017 BAD FAITH CASES: AMENDED BAD FAITH CLAIM ADEQUATE TO MEET TWOMBLY/IQBAL ON KNOWING OR RECKLESS DISREGARD (New Jersey Federal)

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The court previously allowed the insured to amend its inadequately pleaded bad faith claim, based on a refusal to defend and indemnify it for settlement of a trademark infringement action, which the insured litigated unsuccessfully at trial and had up on appeal at the time of settlement.

Under New Jersey law, the bad faith plaintiff must show (1) an absence of a reasonable basis for denying benefits under the policy, and (2) the insurer’s knowledge or reckless disregard of the lack of a reasonable basis in denying the claim. The court originally ruled that the insured adequately pleaded there was no reasonable basis to deny benefits, and the judge saw “no reason to now disturb that finding that is now law of the case.”

The amended allegations went to the test’s second prong, and the court found the new allegations in the amended bad faith claim adequate.

The insured alleged that the insurers had “independently investigated [the insured’s] claim for coverage in the [Underlying] Action; that the Insurers’ counsel confirmed that coverage was due under the policy; that the Insurers were aware that proceedings in the [Underlying] Action were costly and rapidly progressing, and aware of the status of the case; that [the insured’s] counsel explained in correspondence that the Insurers owed a duty to defend under New Jersey law; and that the Insurers ‘have delayed the processing of the claim knowingly or in reckless disregard of the fact that they had no valid reason for doing so.’” These allegations went beyond mere legal conclusions and met the Twombly/Iqbal standards.

Date of Decision: February 14, 2017

Product Source International, LLC v. Foremost Signature Ins. Co., No. 15-8704, 2017 U.S. Dist. LEXIS 21460 (D.N.J. Feb. 15, 2017) (Simandle, J.)

FEBRUARY 2017 BAD FAITH CASES: INSURER NOT REQUIRED TO REIMBURSE PRIVATE DEFENSE COUNSEL (New Jersey Appellate Division)

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A default was taken against the insured, who hired his own counsel to defend the matter, without notice to the insurer. The court found this a breach of the insured’s duty. However, once put on notice of the suit and default, the insurer took prompt action to vacate the default and settle the matter.

Among other things, the insured sued for bad faith on the basis of the insurer’s refusal to reimburse private counsel’s legal fees. The court granted summary judgment, as the insurer never denied coverage, there was no reason to hire private counsel had the insured put the insurer on notice, and there was no permission from the insurer to hire that counsel as required by the policy.

Date of Decision: December 7, 2016

Kim v. Leading Ins. Group & Leading Ins. Servs., No. A-5161-14T1, 2016 N.J. Super. Unpub. LEXIS 2599 (App.Div. Dec. 7, 2016) (Reisner and Sumners, JJ.) (Unpublished)