BAD FAITH IN INSURANCE SETTLEMENTS

BY DAVID GROSSACK

A few years ago writer John Grisham authored an entertaining novel entitled “The Rainmaker.” It was a story about a newly admitted lawyer in Memphis battling an insurance company that had made a deliberate decision to dishonor every single claim, whether justified or not. The insurance company reasoned that a good many claimants would simply give up in frustration. Other claimants might sue, but the cases could be delayed and appealed for years and, in the process, many more would fall by the wayside.

The strategy would, in theory, be a way to keep most of the money collected from premiums and pay out the absolute minimum necessary, and only when forced to. Very often people with insurance claims feel like they are facing a company like the one in Grisham’s novel. The dynamics at work in an insurance case can be frustrating unless one is very patient.

When you are injured, you may be facing a loss of income and at the same time, facing medical bills and related expenses. Bill collectors may be hounding you and you may be feeling pain every minute of every day. Bankruptcy filings by uninsured accident victims are common. When you hire a lawyer, that lawyer is likely working for you on a contingent basis.

This means no legal fees are due unless you recover money. Usually you are only responsible for court filing fees and similar small expenses. Even these expenses can be a burden when you are out of work due to injury. On the other hand, insurance companies have access to literally billions of dollars that they use to hire teams of well-trained, closely supervised lawyers, paralegals, secretaries, detectives and law student researchers.

Rarely is the battlefield level.

Moreover, the insurance companies have been busy in making the public distrustful of accident victims who want to be compensated for their injuries. They have resorted to taking advertisements out in magazines telling jurors to be careful in awarding damages because they’ll drive everybody else’s premiums upward. This campaign has provably led to lower jury verdicts. Insurers routinely accuse victims of making fraudulent claims even when such accusations are absurd, and send investigators with video cameras to try to catch the injured on tape raking leaves, shoveling snow or doing home repairs.

Lately, insurers have been lobbying against contingent fees, knowing full well that most people cannot afford to pay a lawyer hourly. Against this background the claims adjusters who work for insurance companies know that when they make low offers to settle cases, they will often be accepted because they are following a strategy of “starving out” the accident victims, many of whom live “paycheck to paycheck.”

Courts and legislatures are aware of this wrongdoing and have taken very serious steps to punish insurance companies for making ridiculously low offers or unreasonably denying claims altogether, forcing the victims into years of vexatious litigation to get their claim honored. In Massachusetts, the legislature has enacted statues that are used by accident victims’ lawyers to redress bad faith insurance settlement practices.

When responsibility is obvious, and when injuries have been documented, failure to offer a reasonable settlement is an unfair business practice made unlawful by the Consumer Protection Statute, General Law Chapter 93A. Forcing an injured party to litigate in such circumstances can be a reason to sue the insurance company.

The statue requires you or your lawyer to send a demand letter to the head of the company explaining the specific details off your grievance, and allowing thirty (30) days to investigate your case and to come back with a reasonable offer. Such a letter must warn them that if no satisfactory response is received in 30 days, you then have the right to sue and to ask for triple damages and your legal fees.

Insurance companies usually take such letters seriously, and often change their settlement position after receiving such a letter. If a satisfactory settlement offer is not made after 30 days, you then have the right to sue the insurance company in addition to making whatever other claims you may be entitled to. When you are represented by a lawyer, be sure your lawyer is considering your right to sue for bad faith insurance settlement practices.

Attorney David Grossack practices personal injury law in Hull and Newton. In 1999, the staff of Lawyers’ Weekly voted him “Lawyer of the Year.” He can be reached at 617-965-9300 or dcg3@ix.netcom.com. His website is located at http://www.grossack.com