Articles Posted in Punitive Damages

The issue of application of Illinois punitive damages laws arises with respect to State Farm in large measure because of the recent decision in the matter styled Campbell v. State Farm Mutual Automobile Insurance Company, No. 98-1564 (UT S.Ct. 10/19/01) 2001 UT 89. With respect to State Farm’s adjustment practices, the court in that case considered the claims under the law of the state of Utah, allowing for the award of punitive damages. It considered in particular the following list of issues for the application of Utah’s punitive damage awards:

1) The relative wealth of State Farm;

2) The nature of State Farm’s misconduct;

3) Facts and circumstances surrounding State Farm’s misconduct;

4) The effect of State Farm’s misconduct on the Campbells and others;

5) The probability of future recurrences;

6) The relationship of the parties;

7) The ratio of punitive to compensatory damages;

Of particular importance to our analysis of State Farm’s exposure for punitives in subsequent cases are the findings of the Utah Supreme Court on the nature of State Farm’s misconduct. It is these findings which would apply to State Farm’s adjustment practices in any case in any state.

From the Campbell case the findings are as follows:
“2. The Nature of State Farm’s misconduct.
This factor specifically analyzes the nature of the defendant’s conduct in terms of its maliciousness, reprehensibility, and wrongfulness. It mirrors the “reprehensibility” factor described by the United States Supreme Court in BMW of North American, Inc. v. Gore, 517 U.S. 559 (1996). There, the Supreme Court stated that the defendant’s misconduct is “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.” Id. at 575, 576. Repeated “trickery and deceit” targeted at people who are “financially vulnerable” is especially reprehensible and worthy of greater sanctions. Id. Moreover, “deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper notice” also warrant larger awards. Id. at 579.

With these standards clearly in mind, the trial court made nearly twenty-eight pages of extensive findings concerning State Farm’s reprehensible conduct. We summarize here three examples from those findings of State Farm’s most egregious and malicious behavior.
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Louisiana allows punitive damages only in very limited circumstances against insurers. The limited circumstances under which persons can recover are set out at La. R.S. 22:658, which provides as follows:

§658. Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; penalties; arson-related claims suspension
A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.

(2) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.

(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658 (A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658 (A) (2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment of tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

(2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or the there is insufficient evidence to warrant further proceedings.

(3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.

(4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable attorneys’ fees for the collection of such expenses.

C. (1) All claims brought by insureds, worker’s compensation claimants, or third parties against an insurer shall be paid by check or draft of the insurer to the order of the claimant to whom payment of the claim is due pursuant to the policy provisions, or his attorney, or upon direction of such claimant to one specified; provided, however, that the check or draft shall be made jointly to the claimant and the employer when the employer has advanced the claims payment to the claimant. Such check or draft shall be paid jointly until the amount of the advanced claims payment has been recovered by the employer.
(2) no insurer shall intentionally or unreasonably delay, for more than three calendar days, exclusive of Saturdays, Sundays, and legal holidays, after presentation for collection, the processing of any properly executed and endorsed check or draft issued in settlement of an insurance claim.

(3) Any insurer violating this subsection shall pay the insured or claimant a penalty of two hundred dollars or fifteen percent of the face amount of the check or draft, whichever is greater.

D. (1) When making a payment incident to a claim, no insurer shall require that as a condition to such payment, repairs be made to a motor vehicle, including window glass repairs or replacement, in a particular place or shop or by a particular entity. Any insurer violating the provisions of this Subsection shall be fined not more than five hundred dollars for each offense.

(2) A violation of this Subsection shall constitute an additional ground, under R.S. 22:1173 [fn1], for the commissioner to refuse to issue a license or to suspend or revoke a license issued to any agent, broker, or solicitor to sell insurance in this state.

Similarly, the right of recovery against insurers includes claims settlement practices abuses which give rise to punitive damages under the provisions of La. R.S. 22:1220:

§ 1220. Good faith duty; claims settlement practices; cause of action; penalties
A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.

B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:

(1) misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.

(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.

(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.

(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

D. The provisions of this Section shall not be applicable to claims made under health and accident insurance policies.

E. Repealed by Acts 1997, NO. 949, § 2.

F. The Insurance Guaranty Association Fund, as provided in R.S. 22:1375 et seq., shall not be liable for any special damages awarded under the provision of this draft as Division could have had rights against insurer for reimbursement of medical services furnished to insured. Nelson v. Ardoin, App. 3 Cir. 1979, 367 So. 32d 1233.
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