Jul 23, 2010

As a trial lawyer for nearly 20 years, there is nothing like the thrill of knowing that you are standing up on the first day of trial on behalf of a deserving injury victim. Our motto always comes into my mind at that precise moment: "justice for victims begins here." There is no greater thrill than bringing in a well-deserved verdict for such a victim. However, the one thing that I know exists and I must overcome in every trial, with the exception of one type of case, is general juror suspicion. I must dig myself and my client out of this imaginary hole. At the start of a trial, a plaintiff bringing a personal injury case and his counsel are almost universally looked down upon by jurors as being the ones with an agenda.

You really cannot blame the jury for having these preconceived notions about personal injury victims. The jury is this sanitized group of people who have generally never filed a lawsuit, never had an injury caused by anyone else and have never needed to hire an attorney. If they did have any of these past experiences that would help them understand my client, they invariably would have been kicked out of the jury pool by the defense lawyer. So these jurors, particularly in the beginning of the trial, will project an energy that reflects a certain degree of mistrust in me and most particularly my client.

I recognize this sentiment and know that the first part of nearly every trial is going to be a little rocky. The jury is going to need to encouraged to understand that my client is just like them that he really does have a reason to be in court and that his injuries are legitimate. I call this part of the trial the "digging out of a hole" phase. The fortunate news is that it isn't where you start this race that is nearly as important as where you finish. It requires digging, but under normal circumstances it's not an impossible dig.

Of course, there is that one type of trial that I remarkably begin in no hole whatsoever. Right out of the chute, the jury is not jaded against me, or more importantly, my client. In fact, the jury is almost always energized and believes clearly that we have a right to be in court. So do I have your attention? What is that type of case where jurors start out supportive?

The one type of case where I do not have to begin the trial by digging out of a difficult hole due to the preconceived jury sentiment against plaintiffs is in a bad faith insurance trial.

1) What Is Bad Faith?
These words sound more ominous than they really are. "Bad faith" basically means that an insurance company has failed to live up to its obligations to its customer. It's actually a strange hybrid of the law. The claims are based on a breach of contract, in that the insurance agreement was not honored to the reasonable expectations of the policyholder, the customer. But it is also a tort in that the insurance company has a lot more to lose than simply rescission of the premiums paid. The full claim for relief is called "Bad Faith Breach of the Covenant of Good Faith." It's a mouthful of words, but it also packs a punch.

2) What Happens if the Jury Finds an Insurance Company Committed Bad Faith?
Let's talk about a "garden variety" case of bad faith. Assume there is an auto insurance policy that required the insurance company to pay losses incurred to its insured related to uninsured motorist benefits. Also assume that despite ample evidence of injuries, medical bills and wage loss due to the accident with an uninsured driver, the insurance company refuses to pay its customer (the policyholder) adequate compensation for his injuries and losses.

Under the right set of circumstances, a jury could hold the insurance company responsible not only for the value of the coverage promised in the policy itself, but also for damages including economic, non-economic (like emotional pain and suffering) and possibly even physical impairment (assuming that some delay in action from the insurance company caused delay in care such that conditions turned permanent). In the more extreme examples, a jury could award up to three times the value of actual damages.

On those occasions where I enter the courtroom with the purpose of detailing for the jury the bad faith conduct of an insurance company, there is no doubt that every juror sympathizes with my client almost out of the chute. Everyone knows someone who has been through a struggle with an insurance company.

Telling a story of a client who paid insurance premiums for years, only in their hour of need to find that their insurance company was playing games instead of acting in due regard for the interests of their customer, really is something that nearly every juror identifies with. No matter if a juror is young, old, conservative, or liberal, they all hate this sort of insurance conduct. Moreover, their verdicts on the subject are generally loud and clear.

There are really two ways to pursue actions against an insurance company that fails to live up to its obligations to its policyholder.

1) Conventional Bad Faith:
This claim requires a showing that the insurance company acted unreasonably AND that at the time they acted unreasonably they did so with reckless disregard for their unreasonable conduct. First, whoever came up with this standard must be working for the insurance industry. Think about it. The jury is required to find unreasonable insurance conduct and must apparently also crawl into the mind of these adjusters and show that they meant to be unreasonable at the time. This is a very high standard, and yet plaintiffs win these cases far more times than we lose them. I suspect this is because the jury gets turned off by the way the insurance company acted in the particular case.

2) Unreasonable Delay or Denial of Benefits:
This new type of claim has only existed since August 5, 2008. This fairly recent law only requires the jury to determine that the insurance company unreasonably delayed or denied benefits to its policyholder. That's it! The award in these types of cases is a non-discretionary recovery of twice the value of the insurance policy, as well as attorney fees and 18% interest.

Bad faith cases can be complex relative to lining up witnesses, hiring proper experts, interpreting policy language, and in proper deposition questioning of insurance industry personnel. However, at trial, I am always comforted by a warm reception from the people who ultimately are more important in the process that anyone else: the jury. Juries hate insurance misconduct and punish these companies severely when they feel that an insurance company "played games" instead of "paid claims." The rhyming is intentional and was an actual theme of a recent case I tried.

At Anderson Hemmat, we believe that insurance companies have a duty to their insureds to fully and promptly pay when a car accident occurs. If they don't, then the full force of the law should be brought against them either through a Bad Faith claim or an Unreasonable Delay or Denial of Benefits claim. Either way, we know that Justice for Victims Begins Here. If your insurance company is dragging its feet in paying you the compensation you deserve, call us today so we can discuss how we can use these claims to help you get what you deserve.


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