Jury — continued from Page 20
common theme in a bad-faith case is the “betrayal of trust.” This theme will mean more to a jury if they have already been told about the heightened duties that insur- ance companies owe to their insureds and the reasons we hold them to such high standards. You will have already begun to do this in voir dire by explaining the unique nature of insurance, the peace of mind that insureds seek, and the vulnera- bility of insureds when filing a claim. Insureds are entitled to trust their insur- ance company to deal with them honestly and fairly when handling claims. This theme must be reinforced during the open- ing statement and throughout the trial.
Establish the insurance standards that apply through defense witnesses early It is important to establish the rele-
vant standards that apply to insurance
companies early in a bad-faith trial. The best way to do this is through the defense’s own witnesses. This would include the claims adjuster(s) and their supervisors, who are usually the most logical witnesses to call to the stand first. Start your cross- examination of the claims adjuster by cov- ering all of the various duties that an insurance company owes to its insured that are relevant to your case. Question the adjuster on the fact that he or she knew that there were special rules and standards that applied to insurance com- panies. Go through the relevant standards and ask the adjuster if he or she would agree that the company had a duty to comply with them. Examples of some of these special rules would include the fol- lowing: the duty to act fairly; the duty to give at least as much consideration to the interest of the insured as the company
gives it own interests; the duty to look for ways to find coverage; the duty to assist the insured in making their claim; the duty to conduct a thorough and fair investigation of the claim; the duty to explain each and every basis for denying a claim; the duty to come up with a fair estimate of the total losses suffered by the insured; the duty to interpret grants of coverage broadly; and the duty to interpret exclusions narrowly. This list is by no means exhaustive. Depending on the type of bad-faith case you are trying, there will be different rules or standards that will be relevant. The good thing about starting with
this line of questioning is that there can be no bad answer. If the adjuster agrees with the standards, then you will have established that the company knew what the standards were, but they just didn’t follow them. On the other hand, if the
berman@berbay.com
www.berbay.com 22— The Advocate Magazine JUNE 2011
berman@berbay.com
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