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Choice of Law in Bad Faith Claims

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Choice of Law in Bad Faith Claims INSURANCE LAW Consistent Patterns Help Inform the Choice of Law in Analysis Bad Faith Claims By John G. O’Neill Choice of law questions It is almost inevitable in modern practice, especially for are a recurring and attorneys who specialize in representing insurance com- often outcome- panies, that they will encounter a dispute over which law determinative issue governs a bad faith claim. In many cases, resolution of the choice of law issue can determine of the competing jurisdictions. For exam- in bad faith litigation. whether a plaintiff may maintain a bad ple, conflicts have been found when the faith claim against a client. This article is laws of the relevant states disagree over With so much riding on intended to provide a practical guide to the following: analyzing conflict of laws issues in the con- • Whether a third-party claimant is per- the determination, it is text of bad faith litigation against liability mitted to maintain a direct claim for bad insurers. (Unfortunately, bad faith claims faith against an insurer. See Denham v. important for counsel to arising out of property insurance, as well Farmers Ins. Co., 262 Cal. Rptr. 146, 147 as underinsured, uninsured, and simi- (Cal. App. 1989). understand the relevant lar automotive coverages, are outside the • The level of misconduct that must be scope of this discussion, and are excluded.) shown to recover. See Mirville v. All- principles and the As will be seen below, the outcome of a state Indem. Co., 71 F. Supp. 2d 1106 (D. choice of law analysis can depend upon the Kan. 1999). various ways in which conflict of laws principles followed by the • The types of recoverable damages. See forum jurisdiction as well as the specifics Ryder Truck Rental, Inc. v. UTF Carri- courts apply them. of the claim advanced against the insurer. ers, Inc., 790 F. Supp. 637, 639–41 (W.D. Va.1992). Analytical Framework If a court finds that a conflict does exist, Although courts draw from a range of dif- it will then typically move to the second ferent principles to resolve conflict of laws step, which involves characterizing a bad issues in bad faith claims, they generally faith claim as either an action in tort or share a similar analytical framework. Usu- in contract for the purposes of applying ally, the first step is to determine whether the forum state’s corresponding conflict there is an actual conflict between the laws of laws principles. While this would seem to be a straightforward task, courts have ■ John G. O’Neill is a partner with the Boston law firm Sugarman, Rogers, sometimes struggled with characteriza- Barshak & Cohen, P.C., where he focuses his practice on insurance, busi- tion because claims for bad faith do not fit ness disputes, and professional liability defense. Mr. O’Neill regularly advises neatly into one category: tort or contract. and represents insurers in coverage and bad faith matters throughout the As one court noted, “[t]he doctrinal roots United States. He is a member of the DRI Insurance Law Committee. of the obligation [of good faith] are notori- ously elusive: one scholar has argued that 46 ■ For The Defense ■ May 2017 © 2017 DRI. All rights reserved. actions for bad faith sound in ‘conequitort,’ tort actions generally apply the rule of lex contemplated in her insurance contract” suggesting the interaction among con- loci delicti. Under this rule, an action in upon entry of judgment). The court con- cepts of contract, equity, and tort.” Ryder tort is governed by the law of the place in cluded that the insured’s bad faith claims Truck, 790 F. Supp. at 641. See also Ferrell which the wrongful conduct occurred. See were governed by Florida law. v. Grange Ins., 354 F. Supp.2d 675, 677 (S.D. Restatement (First) of Conflict of Laws §378 Although it would be tempting to think W. Va. 2005) (noting divergence of opinion (1934); American Guarantee & Liab. Ins. that the “last event necessary” rule rou- whether bad faith claims sounded in tort or Co. v. Liberty Mut. Fire Ins. Co., 2014 WL tinely results in the application of the law contract and evaluating choice of law issue 11514675, at *3 (D.N.M. March 24, 2014), of the jurisdiction in which the underly- under both analyses). Luckily, the issue has vac. in part on other grounds, 2015 WL ing action is litigated, this is not always the already been addressed in many jurisdic- 11117309 (D.N.M. Feb. 17, 2015). Accord- tions, making it less likely that it will be a ingly, if the forum state characterizes a bad significant area of dispute. faith action as a tort, it will generally follow Once a bad faith action has been charac- the lex loci delicti rule to resolve choice of Although it would be terized, the court will move to the third and law issues and will seek to determine where final step in the analysis, which involves the bad faith occurred. tempting to think that the applying the corresponding conflict of laws Although the rule is fairly straightfor- principles as adopted by the forum state. A ward, applying it to a bad faith claim can “last event necessary” majority of jurisdictions follow the princi- be challenging. See Pen Coal Corp. v. Wil- ples in the Restatement (Second) of Conflict liam H. McGee and Co., Inc., 903 F. Supp. rule routinely results in the of Laws (1971), though several jurisdic- 980, 983 (S.D. W.Va. 1995) (discussing the tions continue to adhere to the Restatement difficulty of identifying the place where the application of the law of (First) of Conflict of Laws (1934). A handful wrong occurs in a bad faith claim). Depend- of jurisdictions apply other methodologies, ing on the nature of the claim, the wrongful the jurisdiction in which the such as the “choice- influencing consid- conduct could be said to have occurred in erations” developed by Professor Robert several locations: at the office of the insur- underlying action is litigated, LeFlar, or the “governmental interests” er’s adjuster, where settlement negotiations approach developed by Professor Brain- occur, where the underlying tort action is this is not always the case. erd Currie. Courts are far from uniform in litigated, or where the insured feels the eco- their application of these various choice of nomic effect of the alleged misconduct. See law principles to bad faith claims. Never- id. Many courts that adhere to the First Re- case. One federal court reached a very dif- theless, some general observations can be statement approach have attempted to ad- ferent conclusion following the “last event made that are helpful in analyzing choice of dress this problem by deeming the wrongful necessary” rule in determining which law law issues in these types of matters. conduct to have occurred in the jurisdic- governed bad faith claims arising out of tion where the last event necessary to cre- a personal injury suit brought in Indi- The First Restatement: ate liability occurs. See Restatement (First) ana against a Michigan insured. See Bris- “Vested Rights” of Conflict of Laws §377 (1934); Morgan v. tol West Ins. Co. v. Whitt, 406 F. Supp. 2d The traditional approach to resolving con- Government Employees Ins. Co., 2012 WL 771 (W.D. Mich. 2005) (applying Indi- flict of laws issues, sometimes referred to 4377790, at *4 (M.D. Fla. Aug. 22, 2012). ana choice of law principles). The insurer as the “vested rights” approach, is stated In Morgan, a Georgia insured brought had disclaimed coverage or any obliga- in the Restatement (First) of Conflict of suit against her insurer for negligently and tion to defend the tort suit, which was then Laws. The First Restatement has been crit- in bad faith failing to settle an underlying resolved by the insured through a settle- icized for being too mechanical in applica- personal injury lawsuit in Florida, resulting ment and consent judgment exceeding the tion and for sometimes selecting the laws of in a substantial excess verdict against her. policy limit. See id. at 778–79. Citing the a jurisdiction that has little connection to See 2012 WL 4377790, at *1. The insured insurer’s lack of involvement in the Indi- the dispute. See William M. Richman and argued that the insurer’s bad faith had been ana suit and any settlement discussions David Riley, The First Restatement of Con- committed in Georgia for purposes of the that occurred in connection with it, the flict of Laws on The Twenty- Fifth Anniver- lex loci delicti rule because that was where court declined to hold that Indiana law gov- sary of Its Successor: Contemporary Practice she resided and suffered injury, which was erned the claim. See id. at 788–89. Instead, in Traditional Courts, 56 Md. L. Rev. 1196, the last event necessary to make the insurer the court found that the last act necessary 1199 (1997). At present, only a small group liable. Id. at *3. The court rejected this to make the insurer liable had occurred of jurisdictions continue to adhere to the argument, holding that the insured had at an earlier point in Michigan, where the First Restatement approach. suffered injury in Florida when the court insurer had sent letters wrongfully deny- in the underlying litigation entered judg- ing coverage for the tort suit. See id. at 788. Torts: Lex Loci Delecti ment against her in excess of her policy Accordingly, the court concluded that the Courts following the First Restatement limit. See id. at *5–6 (ruling that insured bad faith claim was governed by Michi- approach to resolve choice of law issues for incurred “damages beyond the damages gan law.
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