How to Effectively Resist Liability Insurers’ Defenses to Bad Faith Liability


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Course Description

This program was recorded on February 1, 2021

Every insurance policy implies a covenant of good faith and fair dealing by which the insurer may not unreasonably withhold or delay payment of claims of its policyholder under penalty of incurring tort liability, including attorneys fees and punitive damages. There are generally two ways that liability insurers may avoid bad faith exposure: 1) Don’t commit it; and 2) Get away with it. Insurance depends on the Law of Large Numbers, a statistical theory that the larger the number of events, the more accurate will be the prediction of the likelihood of the outcome of such events. All insurers use the Law of Large Numbers in underwriting a risk - an example being mortality tables. But the Law of Large Numbers may apply equally to the claims side of the house, including bad faith exposure. Specifically, if a hypothetical liability insurer commits bad faith a very large number of times, it may accurately predict the likely costs and benefits of acting in bad faith to determine whether or not bad faith conduct pays. This course explains techniques how policyholders, injured victims, and their counsel can effectively resist systemic bad faith conduct by liability insurers and their lawyers - or get paid handsomely for exposing it. These techniques include seeking injunctions, enforcing insurance regulations, established breaches of duty, and using improved retainer agreements that permit coverage counsel to be fully compensated for prosecuting bad faith cases.

Speaker Bio
1 General Credit
Course Agenda

Attorney Stephen ThomasStephen Thomas
Principal fields of study include: duty to defend, conflicts of interest, reservations of rights, Cumis counsel, lawyers’ ethical obligations, reasonableness of attorney fees, insurer reimbursement claims, good faith reliance on counsel, insurer good or bad faith, insurance coverage in construction defect, professional liability, personal injury, many business and personal torts, products liability, malicious prosecution, false imprisonment, libel, slander, wrongful eviction, invasion of privacy, discrimination, sexual harassment, and pollution claims. Represented insurance companies or policyholders in coverage disputes. Defended policyholders for insurers in a wide variety of liability suits.

Contact Stephen Thomas

1 General Credit

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Course Agenda

Brief Review of Previous Lectures

The Situation

Liability Insurance Policy

Bad Faith

1. The Philosophical Concept of Bad Faith

2. The Working Definition of Bad Faith

3. The Common Misconception of Bad Faith

4. Insurer Defenses to Bad Faith

A. “Reasonable” Excuses to Not Pay or Delay Paying

1) Policyholder Failure to Establish All Elements of a Cause of Action

2) Policyholder Breach of Policy Obligations

3) Disputed Issues of Law or Fact

4) Unripe Obligations

B. The Genuine Dispute Doctrine

C. Vigorous Litigation

1) Pre-litigation Development of Admissible Evidence

2) Recovery of Attorneys Fees

D. The Law of Large Numbers - Planned Bad Faith?

The Contrarian Multiplier Effect

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