Insurance Bad Faith

Posted almost 2 years ago. Applies to Las Vegas, NV, 4 helpful votes

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GOOD FAITH INVESTIGATION

A. Insurer Consideration of All Available Information B. Biased or Incompetent Medical Claims Reviews Bad faith insurance law is premised on the legal principle that there is an implied covenant of good faith and fair dealing in every insurance contract that prohibits either party from preventing or injuring the other party's right to receive the benefits of the contract.the Court recognized that "the insured's interests must be given 'equal consideration' with those of the insurer, or as it is often expressed 'at least equal consideration to win one must show:(1) a pattern of misconduct-that it happens all the time, or (2) that the insurer's conduct demonstrated an overarching intent that focused on denying or minimizing claims payments. Generally, discovery in a bad faith action will explore the insurer's policies or practices that involve institutional bad faith.

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DISCOVERY OF OTHER ACTS OF SIMILAR CONDUCT

DISCOVERY OF OTHER ACTS OF SIMILAR CONDUCT A. Evidence of First-Party Bad Faith and Wrongful Intent B. Evidence of Pattern of Practice of Wrongful Claims Handling C. Evidence of Recidivism and Right to Punitive DamagesIt is appropriate, in applying the test, to determine whether a claim was properly investigated and whether the results of the investigation were subjected to a reasonable evaluation and review...."covenant is implied in an insurance contract that neither party will do anything to injure the rights of the other in receiving the benefits of the agreement. This covenant includes a duty to settle claims without litigation in appropriate cases."

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Reasonable basis for denial of

(1) the absence of a reasonable basis for denial of policy benefits and (2) the knowledge or reckless disregard of a reasonable basis for denial. In explaining the test, the court emphasized that a claim must be properly investigated and subjected to reasonable evaluation and reviewtest is our conclusion that the knowledge of the lack of a reasonable basis may be inferred and imputed to an insurance company where there is a wreckless disregard of a lack of a reasonable basis for denial or a wreckless indifference to facts or to proofs submitted by the insurer."

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Good faith and fair dealing encompass qualities of decency

The insurer's obligations are ... rooted in their status as purveyors of a vital service labeled quasi-public in nature. Suppliers of services affected with a public interest must take the public's interest seriously, where necessary placing it before their interest in maximizing gains and limiting disbursements.... [A]s a supplier of a public service rather than a manufactured product, the obligations of insurers go beyond meeting reasonable expectations of coverage. The obligations of good faith and fair dealing encompass qualities of decency and humanity inherent in the responsibilities of a fiduciary. Insurers hold themselves out as fiduciaries, and with the public's trust must go private responsibility consonant with that trust

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Procedures that emphasizes minimizing insurance claims to the

There are two different types of evidence in bad faith claims. The first type involves only the actions of the claims personnel and seeks to show that their actions were outrageous and caused damage to the plaintiff. The second type of evidence is called "institutional bad faith." "Institutional bad faith" is a corporate philosophy, implemented in a series of procedures, that emphasizes minimizing insurance claims to the detriment of policyholders.

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Bad faith because of a direct pecuniary interest in optimizing the insurer's financial condition by keeping claims costs down

the Nevada Supreme Court upheld a finding of bad faith because of a direct pecuniary interest in optimizing the insurer's financial condition by keeping claims costs down. When an insurer knowingly communicates goals to its employees that conditions them to minimize claims, that violates the rule requiring an insurer to give equal consideration to an insured's interests. Evidence of insurer goals that adversely affect the payment of claims establishes knowledge in a bad faith action

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Insurers have established goals to deny or minimize medical claims

In the guise of "medical cost containment, " insurers have established goals to deny or minimize medical claims. These goals are implemented through medical claim review procedures that are performed either by medical providers, insurance company personnel or third-party vendors. Often, the insurer will order an independent medical examination (IME),

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Absence of a reasonable basis for denial of policy benefits

F]or proof of bad faith, there must be an absence of a reasonable basis for denial of policy benefits [or failure to comply with a duty under the insurance contract] and the knowledge or reckless disregard [of the lack] of a reasonable basis for denialthe relationship of insurer and insured is inherently unbalanced; the adhesive nature of insurancecontracts places the insurer in a superior bargaining positionwhich is conducted by a medical provider who has an ongoing relationship with the insurer and whose reports typically favor the insurer. At other times, medical claim reviews may be conducted by an insurance company employee whose performance is measured by the employee's ability to reduce medical costs. Also, medical utilization review companies, whose sole objective is to cut medical costs for their clients, are used by insurers.

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The company cannot later seek to justify its denial by gathering information it should have had in the first place

Once the bad faith has occurred, once the duty to use good faith in considering insurance claims has been breached, the insurance company cannot later seek to justify its denial by gathering information it should have had in the first place. "An insurer purchases insurance and not an unjustified court battle when he enters into the insurance contract."The use of biased or incompetent medical claim reviews establishes wrongful intent in a bad faith action. Increasingly, courts have recognized that medical claim reviews conducted by persons that are biased or incompetent lead to predictably arbitrary claim decisions.

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License to steal.

The eventual payment of a plaintiff's claim does not extinguish the wholly separate tort claim of bad faith.an insurer's violation of its duty of good faith and fair dealing constitutes a tort, even though it is also a breach of contract. Such tortious conduct is demonstrated where there is unreasonable delay in performing under a contract, including delays in settlement under a liability policy.In the so-called breach of contract actions that smack of tort we do not think it is enough just to permit the defendant to pay that which the contract required him to pay in the first place. If this were the law, defendant has all to gain and nothing to lose. If he is not caught in the fraudulent scheme, then he is able to retain the resulting dishonest profits. If he is caught, he has only to pay back that which he should have paid in the first place.

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Breach of contract

Evidence of other acts of similar conduct establishes elements of first-party bad faith and wrongful intent. In a bad faith action, an insurer's other acts of similar conduct is important evidence in proving the defendant's state of knowledge.While evidence of other acts may not be used to prove a defendant's character, "[i]t may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."the evidence was relevant in proving intentAs the defendant rarely admits the crucial element of intentional wrongful conduct, it must be established by the plaintiff and proved by circumstantial evidence

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Knowing violation

Proof of a knowing violation will make plaintiff's job that much easier, in cases where a knowing violation is difficult to establish, knowledge can be proved circumstantially. Discovery aimed at determining the frequency of alleged unfair settlement practices is therefore likely to produce evidence directly relevant to the action.Courts uniformly hold that evidence of recidivism is relevant and admissible to establish the plaintiff's entitlement to punitive damages, as well as to determine the extent of punitive damages necessary to deter future misconduct. In reviewing punitive damages cases,

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Punitive damages may properly be imposed to further a State's legitimate interests in not only punishing unlawful conduct

Punitive damages may properly be imposed to further a State's legitimate interests in not only punishing unlawful conduct but also to deter its repetition.Punitive damages may properly be imposed to further a State's legitimate interests in not only punishing unlawful conduct but also to deter its repetition This happens offten when a defendant shows no remorse for his acts .

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Howard Roitman, Esq. 8921 W. Sahara Ave. Las Vegas, Nevada 89121 (702) 647-8550

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