Bad Faith Insurance Question

[GoforLaw]

interesting case

yes IAAL, I read this case and it was very interesting. But it has nothing to do with the poster's question. The case holds that an insurer's decision to cut off disability benefits was not bad faith because it was reasonably relying on interpretation of the policy under unsettled and contradictory law. When the law was ultimately settled (by the Cal Supreme Court), although the insurer's interpretation turned out incorrect, it could not be said that it was originally acting unreasonably to subject it to liability for bad faith. I had a Dec Relief action like this once, where the same issues came out. But in the poster's question, there is nothing about unsettled law and Prop 103 has been in effect since 1990 ... I assisted in its implementation at a large insurance company. Certainly, if the poster can show substantial evidence to the insurance company that he was not liable for the accident because he was cut off by an improper lane change, and if the insurance company just pooh poo'hs that, I would think he could sue them for bad faith. But that just my opinion.

 

[I AM ALWAYS LIABLE]

My response:

Then you missed one of the most important rulings under Morris v. Paul Revere Life Ins. Co.

You said, "Certainly, if the poster can show substantial evidence to the insurance company that he was not liable for the accident because he was cut off by an improper lane change, and if the insurance company just pooh poo'hs that, I would think he could sue them for bad faith. But that just my opinion."

Under current law, due to "Morris", you're wrong.

As you know, former law was that the insurance company was under an obligation to find facts FAVORING an insured; i.e., "the tie goes to the batter", so to speak. However, because of "Morris", the insurer is now entitled to argue for whatever interpretation of the law or policy language is most beneficial to ITS own interests (it need not adopt the interpretation most favorable to insured).

So, despite Yukes beliefs about how the accident occurred, the insurance company is entitled, now, to adopt its own interpretation which may be beneficial to itself!

IAAL

 

[stephenk]

"if the poster can show substantial evidence to the insurance company"

That is where the poster will fail. Damage to the entire back end of a car is more indicative of the poster not stopping in time for a vehicle completely in the lane ahead. Unless the driver of the other car admits to an unsafe lane change, there really isnt much, if any, evidence to support the poster's postion.

If the other car was making a quick lane change and having to stop, the car would most likely be still at an angle trying to get in the lane. damage would be either at the right or left rear portion of the car, depending on what direction it was trying to enter the lane.

 

[GoforLaw]

response to IAAL

I can see why you selected your name. You are mixing legal concepts within the law of bad faith, and misreading the Morris decision. If you are saying that Morris stands for the proposition that the insurance company can place its own interest ahead of the insured, then I would love to go head to head with you in a bad faith claim. The law was always and remains the same - an insurer must place the insured's interests EQUAL to its own. On a different subject, when the policy language is "ambiguous" the insured's reasonable expectations prevail. But as you say, the insurer need not take the insured's position of the LAW or policy interpretation (when it is not ambiguous).

 

[GoforLaw]

response to JETX and all

I would appreciate if you concentrate on the content, rather than childish misspellings of my name. You only hurt the credibility of your own message, if there is any there.

And by the way, I agree with all of you that this is probably not going to overturn the "at fault" assessment due to the nature of the accident. However, I am trying to provide helpful information to the posters about what they can do and what their potential rights are, not just pooh pooh everything as you guys do. I qualified everything by saying that "if" he can show evidence to the insurance company to the contrary - if he can, police report at the scene or not, he has a point. Oh, and I have had many cases where the original police report was less than credible.

On a last note, I find that many of you offer very little constructive advice and concentrate more on infantile remarks and conclusory evaluations. Try reading the numerous responses from posters, which show a complete disgust of how you people handle their questions. I think that if you are going to post, you should be more professional and actually have something to say.

 

[I AM ALWAYS LIABLE]

Re: response to JETX and all

I would appreciate if you concentrate on the content, rather than childish misspellings of my name. You only hurt the credibility of your own message, if there is any there.

I think that if you are going to post, you should be more professional and actually have something to say.

========================================


My response:

Yes, I agree with your assessment. I guess that's why you said to me, backhandedly, "I can see why you selected your name."

You know, despite our few disagreements, I have tried to answer your questions and be respectful of you. I'm finding it increasingly more difficult to accomplish.

IAAL

 

[GoforLaw]

I apologize to you IAAL - it was wrong of me to make that silly reference to your name (although for the life of me I do not understand why you chose it, if you didnt expect some flack about it). I was a little frustrated at your legal analysis, which I feel is incorrect. I also feel that many of your posts are simply not helpful and you can see that in the many angry responses to your "answers." So you can be angry at me, but you are not obligated to answer any of my questions (not that I asked you any). I feel that with the exception of this last remark by me, I have been courteous and professional toward you.

 

[Yuke]

sorry Jetx gotta take you to the woodshed, I don't want misinformation spreading.

--------"Further, the writers statement that he hit them because his "anti-lock brakes engaged and their's did not" is ridiculous. If that was true.... the writers car would have stopped BEFORE the one in front of him...... and avoided contact."--------

Anti-lock brakes are a tradeoff. Anti-lock brakes pump your brakes for you. Pumping brakes involves cycling between braking and not braking. The purpose of this it to not skid so that you can maintain control of your car. But... as you can imagine, if there is a period of time where you are not breaking, your braking distance will be longer. Here's a braking distance chart for you.

skidding>anti-lock>not skidding

--------"I can tell you this after several years of on-scene accident reports..... I have NEVER seen a car hit directly from the rear (as in this case) with NO side or lateral damage that was determined to be AT fault."----------

you may be right in your experience, but here are two pertinent California vehicle codes:

California vehicle code 22109 states:

No person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal in the manner provided in this chapter to the driver of any vehicle immediately to the rear when there is opportunity to give the signal.

California vehicle code 21658(a) states:

(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.

There's actually caselaw Witt v. Jackson 17 Cal.Rptr. 369 where a police car cuts off another car, causing the other car to strike the police car from behind. The police car driver was found to be at fault.


-------"AND based on the description of the damage provided in this post, there is nothing to indicate that the OTHER driver was at fault......."--------

Based on the damage, yes, there is nothing to indicate the other driver was at fault. What indicates he's at fault is that the other party maintains he did not change lanes 2 miles before the accident happend. That is not possible because he would have to have had changed lanes at most, 1/10th of a mile before the accident.

Basically, the point of this post is that I'm saying his lie is such BS that how could any insurance company believe it unless they did so in bad faith.

 

[GoforLaw]

Yuke

The realities of life are that an insurance company will be believe and use any crap in its favor, as long as it seems plausible, and they can make money from it. I can tell you from my personal experience that trying to reverse an "at fault" determination is very hard (because it is not in the insurer's interest). You have to be, at least, a squeeky wheel that hopefully will get the grease, and maybe even sue them ... that WILL get their attention. But I can guarantee that they will stick to the original police report, since it finds you at fault, until they are forced to change their mind.

On a separate issue, if you have a life-long injury and strongly believe that you are not at fault because of the "swoop" maneuver, why not just hire a lawyer and sue the other driver? If you win, your insurance company will have no choice but to change the rating, or then really have a bad faith issue on their hands. This would be especially interesting if you first tried to get them to change the "at fault" rating, they refuse, and then you are forced to sue the other driver to prove your point. That, I would argue, is putting the interests of the insured below the insurer.

 

[Yuke]

----- "On a separate issue, if you have a life-long injury and strongly believe that you are not at fault because of the "swoop" maneuver, why not just hire a lawyer and sue the other driver? If you win, your insurance company will have no choice but to change the rating, or then really have a bad faith issue on their hands. This would be especially interesting if you first tried to get them to change the "at fault" rating, they refuse, and then you are forced to sue the other driver to prove your point. That, I would argue, is putting the interests of the insured below the insurer."------

actually I'm screwed because initially my doctors had diagnosed the problem as bursitis of the knee. Now the current diagnosis is chrondomalacia, which is cartilage damage to the knee. The problem is that accident occurred before California's change to a 2-year sol, so there's a 1-year sol on the accident that occurred in the end of December, but 2 years for the bad faith claim which occurred in the following Jan.

oh btw THANKS!!!!

 

[GoforLaw]

that is a real pickle, and now I understand why your question focused on bad faith. I would still try the prop 103 rating issue, and if necessary, involve the Department of Insurance. Best of luck!

 

[JETX]

What you are in fact doing is giving a false hope to this poster and to others who you throw a lifeline to.... especially considering that the 'lifeline' you throw is thread-thin.

Clearly, you need to get out of your 'ideal' office and into the real world. I will bet you dimes to donuts that this poster does NOT have the resources, nor the wherewithall, to pursue such a very thin 'hope' as you claim to provide. That is unless you are offering your pro bono services to represent him. But of course, your not doing that are you?? And that is likely due to your own acceptance that to hold onto the 'lifeline' you are tossing would surely lead to his drowning.

Get off your 'holier-than-thou' crap and realize that 99.9% (or more) of the people on this forum who ask for help, are NOT willing or able to test the legal waters on your theories. They are great fun in moot court..... but have no place in REAL law.

 

[GoforLaw]

The only person who is acting "holier than thou" is you. Who are you to say what people seeking help are willing to do? Isnt that a bit presumptuous and a lot pompous on your part?

And as far as REAL law, this is real law - these are normal, ordinary people who need real legal help, just like the ones who would walk into any attorney's office. And they certainly do not need someone to tell them (A) you have no case so just shut up and crawl back into your little corner, or (B) go see a lawyer near you (which you get a robot to do - are you one?).

Practicing real law is dealing with real problems like the ones posted here. It is also trying to (sometimes creatively) figure out recourse for people who are in need of and asking for legal help (in this all too unjust world). That's what these people are doing when they post, and it is you who is fostering an air of negativity and pessimism. Is that what law is about? I was always taught that for every wrong there is a redress under the law ... but maybe that was just "moot court" of JETX.

And as far as "lifelines" ... forgive me if you dont like my "thread-thin" theories, but this is the kind of stuff that sometimes wins cases ... and I believe all my posts are supported with law, not just rhetoric. I'll continue throw out whatever information or possible legal theory that could apply, and let the poster decide how they want to proceed - that's called being a counselor. But apparently, your approach is just keep em in the dark, right? I dont believe I inspire any false hope, and I am quite realistic in my assessments, especially given the fact this poster seems to have a real dilemma on his hands, having passed the PI SOL and looking for alternative theories to redress his wrongs, which he genuinely believes he suffered. I was trying to give him info on all possible options, which I think he appreciated.

And as far as pro bono, I do more in my informative posts than you will do in a year, given your rate of rejection. And again, please do not be presumptuous about what I will or will not do, or have or have not done, to help people.

I wont respond to any more criticisms of my posts from the "experts" on this board, but will direct my attention to people who really need help. Have a nice day!

 

[hexeliebe]

OH BROTHER!

 

[JETX]

Yep, another lawyer 'wannabe' who feels that his 'ideal' world applies. At best, you are either a law student (with a students lack of perspective and experience who loves to live on 'concepts of law') or an attorney who has never seen a courtroom or the realities of life/law.

In any case, go ahead and continue trying to 'tilt windmills' if you chose to.... but don't give writers to this forum your false hopes. Simply, they are NOT going to have the resources or desire to find the minutiae of your 'theories'.

Be sure to send your contribution into the ACLU, or better yet, devote time to their 'pray for hope' causes. But, you will learn the realities of law when you are allowed to enter the REAL world.... where REAL people live.