I've Been Sued!
Will My Insurance Cover The Claim?

If  you can afford the premium, it seems that you can insure most
anything.  Although a percentage of the population elects not  to
acquire any type of insurance, most of us purchase various  forms
of  insurance during the course of our lifetimes.  The  following
types  are  but a few that are available:  automobile  insurance,
health  insurance,  disability insurance, life  insurance,  title
insurance, homeowner's insurance, earthquake insurance,  worker's
compensation insurance, business liability insurance, errors  and
omissions  insurance,  and  products liability  insurance.   Just
because  you are confronted with a claim that seems to  generally
fall  into  one  of these categories, however, doesn't  mean  the
insurance  company  will  consider your  claim  as  covered.   In
addition to setting forth the type of matters for which  you  are
insured,  insurance  policies customarily set forth  "exclusions"
regarding coverage.  You may believe that your claim is  covered;
however,  your  insurance  carrier may contend  otherwise.   What
happens if you find yourself in a dispute regarding coverage with
a company that has more in assets than some members of the United
Nations?

Although reaching for an over-the-counter stomach remedy will  be
your  first thought, there are sources of help available to  you.
The  legislature  and courts in California have  each  undertaken
efforts  to  insure  the public that reasonable  expectations  of
coverage will be met.

Insurance  Code Section 790.03 sets forth a number of  prohibited
unfair  methods of competition and unfair and deceptive  acts  or
practices  in the business of insurance.  Insurance carriers  are
prohibited under Insurance Code Section 790.03(h) from "knowingly
committing  or  performing with such frequency as to  indicate  a
general business practice" various activities constituting unfair
claims   settlement  practices.   Sixteen  such   practices   are
enumerated  within  this Insurance Code Section.   Although  some
unscrupulous insurance company representatives think "790" refers
to  a  radio  station,  the courts have  provided  insureds  with
adequate  remedies which, on occasion, result  in  high  monetary
awards against offending insurance carriers.  The author in  fact
has recently settled such a matter for $1.2 million.

The  courts  have  determined  that every  contract  contains  an
implied  agreement  or covenant of good faith and  fair  dealing.
The implied understanding essentially provides that neither party
will  interfere  with  the rights of the  other  to  receive  the
benefits  of  the  agreement.   With  regard  to  insurance,   an
Appellate Court in California has stated:

          "In determining what benefits or duties an insurer
     owes  his insured . . . the court may not look  to  the
     words  of the policy alone, but must also consider  the
     reasonable  expectations of the public and the  insured
     as  to  the type of service which the insurance  entity
     holds  itself out as ready to offer . . . .  Stated  in
     another fashion, the provisions of the policy 'must  be
     construed  so  as  to give the insured  the  protection
     which he reasonably had a right to expect . . . .'"

What  do  these  words all mean?  Insurance policies  are  to  be
liberally  construed in favor of the insured.   If  an  insurance
company fails to abide by the implied covenant of good faith  and
fair  dealing,  an  insured can sue for "bad faith"  and  recover
compensatory  damages, including damages for  emotional  distress
caused by the company's actions.  In addition, the insured may be
entitled to recover exemplary or punitive damages.

Such   an   action   is  permitted  against  insurance   carriers
essentially  because (1) an insurance carrier enjoys  a  superior
bargaining  position  and is able to dictate  the  terms  of  the
contract,  (2)  the  purpose  of an  insured  entering  into  the
insurance  contract is not primarily for profit,  but  rather  to
secure an essential service, financial security or peace of mind,
(3)  the relationship of the parties is such that the insured  as
the  weaker party places his or her trust and confidence  in  the
larger  entity,  and  (4) there is conduct on  the  part  of  the
insurance  company indicating an intent to frustrate  the  weaker
party's enjoyment of the contract rights.

A  few  of  the  areas in which claims of bad faith  often  occur
regarding insurance are as follows:

      1.    The  company engages in unreasonable and  unjustified
delays in the processing of a claim.

      2.    The  company unreasonably withholds benefits  to  its
insured.

      3.   The company takes advantage of the insured's financial
plight to extract an unfair settlement.

     4.   The company fails to properly investigate a claim.

     5.   The company adopts an unduly restrictive interpretation
of  the  policy provisions in order to avoid or delay the payment
of policy benefits.

      6.    The company deceives the insured as to the nature and
extent of coverage.

      7.    The company prefers one insured over another for  its
own purposes.

      8.   The company fails to disclose relevant information  to
the insured.

     9.   The company harasses the insured into an unsatisfactory
claims settlement.

Don't assume your insurance company representative is right  just
because  he  or she is part of a large company.  Wrong  decisions
are  made by all of us.  Insurance companies are no exception  to
the rule!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1995-2002