Insurance Bad Faith

08 Aug: Best Practice: When to Stay in an Insurance Coverage Action

BEST PRACTICE: WHEN TO STAY IN AN INSURANCE COVERAGE ACTION I recently came across this helpful article by fellow insurance attorney for policyholders, Erica Villanueva at the fine firm of Farella Braun + Martel LLP here in San Francisco.  Her summary of recent appellate court decisions includes pointers for attorneys in seeking a Motion to Stay an insurance coverage action: “When a liability insurer wishes to avoid all coverage obligations with respect to a claim against its insured, it may seek an adjudication that it has no duty to defend or indemnify the policyholder.  If the insurer files for such declaratory relief while the underlying litigation is still pending, California insureds will frequently move to stay the coverage action, pursuant to Montrose Chemical Corp. v. Superior Court, 6 Cal. 4th 287 (1993) (“Montrose I”).  The purpose of such a Montrose stay is to avoid the risk of prejudice to the insured in…

03 Aug: Using Expert Witnesses in Bad Faith Litigation

I am pleased to announce that I will present in an upcoming Strafford live webinar, “Using Expert Witnesses in Bad Faith and Coverage Litigation: Evidentiary Rules, Expert Opinions, and Objections to Testimony” scheduled for Wednesday, August 30, 1:00 pm-2:30 pm EDT. Expert witnesses play a critical role in coverage and bad faith litigation, both for policyholders and insurers. Insurance experts typically are underwriters, claims handlers, brokers, regulators and attorneys with knowledge of insurance industry customs. Claims adjusters are typically used in bad faith litigation to opine as to the reasonableness of another claims adjuster’s conduct. Underwriters are typically experts in coverage litigation providing an opinion on underwriting specific risks and the interpretation and intent of specific policy provisions. Litigators must be careful to avoid the pitfalls of using expert witnesses whose credibility might be attacked based on previous testimony or due to his or her relationship with a particular insurance…

20 Jul: My Passion for Dispute Resolution

I have a passion for dispute resolution.  It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s.  He was a master negotiator but at the same time a supreme diplomat.  His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor. I spent a number of years as a traditional “defense” lawyer in the civil litigation arena.  As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974).  There was no bifurcated trial with the financial worth of the insurer not being known…

13 Apr: Life Insurance Twisting is Financial Elder Abuse

Unfortunately, stories of elder abuse, where someone who is elderly is physically mistreated by family, friends or a medical facility, are common. The stories can be gruesome about neglect, lack of caring and other wrongs committed on the elderly. However, a more prevalent form of wrongdoing involving the elderly is financial. HERE IS A STORY Mr. and Mrs., 74 and 72 respectively, purchased several life insurance policies over the years as part of their estate plan. The policies were variable life, which means that part of the premium paid covered the cost of insurance and the rest went into mutual funds to allow the policies to build up cash value over the years so that, at some point, they would no longer have to pay premiums to keep the policies in force, assuming a reasonable return on their investments. THE PLAN WORKED The plan worked for them. After 20 years their policies had significant…

13 Mar: Insight for Injured Sports Players and Fans

Trial lawyer Guy Kornblum, who specializes in bad faith insurance claims, provides an overview for injured sports players and fans. Whether you are a professional athlete or a recreational player, injuries are common in sports. Does the law offer any recourse? General Rule – No Injury Liability In many cases, you will not be able to hold anyone else liable for an injury you suffered while participating in amateur or recreational sports activities. Injuries are an accepted risk of playing amateur sports, so bringing a successful personal injury claim is very difficult, if not impossible. But there are a few scenarios that might trigger the legal liability of another participant in the sport or the liability of a third party. Assumed Risk of Injury in Sports The legal doctrine of “assumption of the risk” bars you from trying to hold fellow participants or property/facility owners liable when you are injured while…

13 Mar: Waivers in Personal Injury Cases

Where there are fitness, recreation, and sports activities, there are injuries! Unfortunately, where there are injuries, there are lawsuits! Providers of these activities must take care to manage risk in two ways. First, they should take steps to reduce the likelihood of injury as much as possible. Secondly, they should do everything possible to protect themselves and their business entity from the risks of financial loss. A major financial risk is that of lawsuits by parties injured while participating in fitness, recreation, or sports activities. Injuries in fitness, recreation, and sports activities arise from three sources. They result from either 1) accidents due to the inherent risks of the activity, 2) negligence (errors or mistakes) of the provider, co-participants, or others, or 3) extreme actions such as gross negligence or reckless actions. Generally, the provider is not liable for injuries resulting from the inherent risks of the activity, however, they are…

07 Mar: Don’t Let Your Insurance Company Treat You Unfairly!

Most of you have insurance.  You insure your autos, your homes, your health (medical insurance), your income (disability insurance) and your lives. You may also insure your businesses against damage to property used for commercial purposes and loss of income. Your insurance includes protection against lawsuits filed by a third party against you, and you expect your insurance company to defend you in that lawsuit and protect you against a judgment for money damages. FEAR OF THE FUTURE We buy insurance not because we want it but because we need it – fear of the future motivates us to protect ourselves against injury to ourselves, our families and our property.   The prudent person buys as much insurance as he or she can afford – sometimes even more. We seek from our insurance company peace of mind and security against the risk of financial injury caused by the unexpected. FRENEMIES?…

22 Dec: Bad Faith Claims and Wins at KCEH

BAD FAITH CLAIMS We recently filed the first of two cases against Anthem Blue Cross for failure to fully pay a claim for emergency medical evacuation by an insured who needed immediate transport to a medical facility after suffering a serious injury. The case is filed in the United States District Court for the Southern District of Indiana. In addition to the California Bar, Guy Kornblum is a member of the Indiana Bar and has joined with Dave McNamar of Indianapolis, who is Of Counsel with KCEH. The case is a compelling one indeed and includes a “bad faith” claim. We also have a second and even more compelling case (with a great story about the insured who was on an “Angel of Mercy” venture when she suffered a stroke while trekking up Mt. Kilimanjaro). More on that one later. WINS We settled a very interesting case on behalf of an infant who is the survivor of a father not…

15 Nov: Insurance Company Responsibilities in Uninsured/Underinsured Motorist Claims

This is the third article from Guy O. Kornblum on Uninsured/Underinsured Motorist Coverage (UM/UIM). He has discussed what it is, how it works and why you should have as much coverage as you can. As a reminder, it is our recommendation for primary policy limits of $300,000 per person and $500,000 per accident, and an excess policy above that which provides at least $1 million in additional coverage for UM/UIM. I also stressed that in order to qualify for this coverage you must purchase liability insurance (i.e. which protects you from suits by others resulting from your negligence) in the same amounts as the UM/UIM insurance that you want. Make sure you cover this with your agent when discussing your auto policy. INSURANCE COMPANY RESPONSIBILITIES Now let’s discuss how the insurance company must handle a UM/UIM claim once it is presented. First of all, there is an important point to recognize: UM/UIM coverage involves a claim made by an insured to its own insurance company. Thus it is that…

17 Oct: What Happens When Motorists Don’t Have Insurance?

In our last post, we shared an an overview of what Uninsured/Underinsured Motorist Coverage (UM/UIM) is and why you should have it in your auto policy. Another staggering fact is that despite efforts by states to curb the number of uninsured motorists on the roads, the Insurance Research Councilfound 12.6 percent of drivers nationwide were driving without coverage in 2012, the last year for which data is available. All told, 29.7 million people were driving uninsured during that year nationwide. How Much Coverage do you Need? As a result, we recommend primary policy limits of at least $300,000 per person and $500,000 per accident, and an excess policy above that which provides at least $1 Million in additional coverage for UM/UIM. To obtain such, the insurer must offer this level of coverage and you must purchase the same amount of liability insurance coverage as you purchase for this UM/UIM insurance. Making a Claim There are certain requirements in making a…