I once had a coverage case that involved a claim for environmental contamination at a chicken farm. (Yes. A chicken farm. In New Jersey.) When we were able to pry the claim file loose in discovery, we noticed that the carrier had spent a grand total of $24 to investigate the complex pollution claim, which … Continue Reading
I like to think I’m pretty fair and impartial in these blog posts. I said that to a friend of mine in the defense bar who apparently reads my ramblings, though, and she laughed at me. I suppose I have a classic case of confirmation bias, where I think that insurance companies often forget what … Continue Reading
Earlier this month, I was asked by Elizabeth Lorell, an excellent defense lawyer, to speak at a CLE conference sponsored by her law firm. (You can read Elizabeth’s bio here.) The audience consisted of other defense lawyers, and insurance company claims representatives. In other words, I was basically a snake at a mongoose convention. The … Continue Reading
Labor Day has just passed as I write this, and this summer (that went by too quickly) was a busy one for the New Jersey appellate courts, insurance-wise. The New Jersey Supremes, for example, dealt with a question often posed by our clients in construction defect cases: Namely, can a claimant proceed directly against a … Continue Reading
I was saddened to learn that Judge Ruggero Aldisert, formerly of the Third Circuit, recently passed away. I never had the privilege of appearing before Judge Aldisert, and I never met the man, but I feel indebted to him for writing two excellent books that were published through NITA: “Logic for Lawyers” and “Winning on … Continue Reading
Representing people who have lost homes and businesses following Sandy has been gut-wrenching. And, I have to say, many of the carriers haven’t made it any easier. I could catalog some of the problems we’ve seen, but that would make this a very long post. Instead, I’d like to focus on one aspect: The use … Continue Reading
My late Uncle Carmen was an accountant who worked for the IRS. One tax season, I was grousing about how complicated the 1040 form could be. Uncle Carmen didn’t suffer fools gladly, and, with the veins bulging from his neck, insisted that NOTHING ON EARTH COULD BE SIMPLER. My response was to engage in a … Continue Reading
As the weeks following Sandy have stretched into months, and the months are beginning to stretch into years, businesses and homeowners with unresolved claims have been asking me whether it’s worthwhile to complain about their carrier to the New Jersey Department of Banking and Insurance (“DOBI”). Truth be told, it’s a complete waste of time. … Continue Reading
If an insurance company wrongfully denies a third-party liability claim, then, under the New Jersey Court Rules (R. 4:42-9(a)(6), to be exact), if the policyholder has to sue to enforce coverage for the claim, the policyholder is entitled to recover its attorneys’ fees. Due to a weird quirk in the Court Rules, however, a policyholder … Continue Reading
I’m reading a wonderful book right now called “Young Men and Fire,” by Norman Maclean. The book is about a horrific forest fire that took place in Montana in 1949. Amazing how small sparks can result in a conflagration beyond all belief. Those of us involved in the litigation game are familiar with that problem. … Continue Reading
Here’s a question that perhaps should be posed to a magician: How can an insurance company turn an $85,000 claim (on a policy with a $100,750 applicable limit) into an $850,000 bad faith verdict? If you’re Merrimack Mutual, apparently it’s quite easy. I wrote about this case some time ago when the jury verdict first … Continue Reading
Here’s an interesting question recently confronted by the Ninth Circuit: Is it bad faith for an insurance company to refuse to initiate settlement discussions in a third-party context when liability has become reasonably clear? The carrier (Deerbrook, an Allstate company) took the position that bad faith could not exist unless the carrier failed to respond … Continue Reading
In ethics or metaphysics, the “law of unintended consequences” states that, for any willed action, there are consequences that occur which are not intended. The concept has long existed, but was named and popularized in the 20th century by American sociologist Robert K. Merton. Merton would have been fascinated by laws that were intended to … Continue Reading
Awhile back on this blog, we were discussing developments in insurance bad faith law, and I hypothesized that Courts were generally more apt to find bad faith in cases involving a carrier’s delay of benefits, rather than outright denial. But what if the outright denial contains a bald-faced lie, or a deliberate omission? In that … Continue Reading
To many policyholders, ERISA is a government program that simply backfired (sort of like Prohibition). That’s because ERISA considers an insurance company to be a “fiduciary.” Back in 1974, when ERISA was passed by Congress, the lawmakers figured that since the insurance company is a “fiduciary,” it must have the best interests of the injured … Continue Reading
Got into a discussion recently with some of my policyholder counsel friends. They were lamenting the death of bad faith law in New Jersey. When a carrier unreasonably denies or delays paying a claim, the key case is supposed to be Pickett v. Lloyd’s, 131 N.J. 457 (1993), which was written by the late Justice … Continue Reading
I’m just back from Orlando where I had the opportunity to speak at an ABA conference on business interruption insurance. During the talk, I referred to a case I often cite, Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565, 1986 Ariz. LEXIS 253 (1986). For me, the key quote from the case is: “In delineating … Continue Reading
In the last post, we took a look at the Dictiomatic case, in which the policyholder took a beating for overreaching on a business interruption claim. Turnabout being fair play, let’s now have a look at a recent case in which the insurance company got thumped in the business interruption arena. The case is Amerigraphics … Continue Reading
Needless to say, it can be very dangerous for insurance companies to “roll the dice.” Over at the Michigan Auto Lawyers Blog, Steve Gursten tells the story of an adjuster who showed up 40 minutes late for a mediation, and then wouldn’t go north of $1 million in a catastrophic truck accident case involving serious personal injury. The carrier … Continue Reading
Right now, I’m preparing for a coverage trial involving aspects of both New Jersey and Massachusetts law. I was reviewing the Unfair Claims Settlement Practices Acts (“UCSPA”) adopted in both states, and I noticed the following. The New Jersey version of UCSPA prohibits certain bad behavior if committed “with such frequency as to indicate a general … Continue Reading
Recently, one of my friends in the insurance defense bar told me that he’d been given a very strict standing order by his insurance company client. In any case involving a potential conflict-of-laws situation, he was prohibited from EVER arguing for the application of New Jersey law. This attitude stems from cases like the New … Continue Reading
