Insurance companies have a general duty of good faith when settling the claims of their policyholder. This duty of good faith can come from statute, common law, or both. For example, in addition to having a common law duty of good faith, insurance companies in Florida have a statutory duty to act fairly and honestly toward their insureds. Insurance companies that fail to act in good faith may end up in court defending a claim for bad faith.

Contrary to what many believe, it’s not bad faith for an insurance company to deny a claim that is not covered under a policy or to defend a claim subject to a reservation of rights. So what does it mean to act in good faith? According to one court, the duty of good faith requires insurance companies to investigate the facts, give fair consideration to settlement offers that are not unreasonable, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.

Those damaged by an insurance company’s failure to act in good faith may be able to sue the insurance company for bad faith. Bad faith claims can be first-party or third-party.

A first-party bad faith claim occurs when an insurance company is sued by its insured for refusing to settle the insured’s own claim in good faith. First-party claims typically involve allegations that the insurer improperly denied coverage, underpaid a loss or delayed payment without adequate justification. A common example of a first-party bad faith claim is when an insured is involved in an accident with an uninsured motorist and does not reach a settlement with his or her own uninsured motorist liability carrier for costs associated with the accident.

A third-party bad faith claim arises when an insured is exposed to liability in excess of insurance coverage because the insurer failed in good faith to settle a third party’s claim against the insured within policy limits. Third-party bad faith claims often arise in situations where there is clear liability on the part of the insured, severe injury to the third party, and minimal policy limits available.

Assume, for example, an insured with $100,000 of automobile liability coverage runs a red light and injures a pedestrian. Despite the pedestrian’s significant injuries and the insured’s clear fault, the insurance company rejects the pedestrian’s reasonable $90,000 settlement offer. The pedestrian goes to court and is awarded $200,000 in damages. By failing to act in good faith and settle the case within the $100,000 policy limit, the insured is liable for the excess judgment amount of $100,000.

In this example, the insured could file a third-party bad faith claim against its insurance company. The injured pedestrian may also be able to sue the insurance company, either directly if permitted by applicable law, or through an assignment of the insured’s rights. Note that in some jurisdictions insurance companies are entitled to notice before a lawsuit can be filed. In Florida, for example, those wanting to file a bad faith claim must give the insurance company 60-days’ notice before filing a lawsuit.

The claims settlement process can be long, complicated and stressful, even when the insurance company is handling the process in good faith. Since bad faith claims, particularly those involving third parties, can be very complex, it helps to have a reputable and experienced insurance agent to guide you through the claims process.

If you have any questions or would like to discuss your insurance options, please contact us.

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