Bad Faith Insurance Tactics | Bad Faith Litigation

bad-faith-insurance-practicesIt shouldn’t be a big surprise to learn that insurance companies keep their profits up when they avoid or reduce their liability for claims. No matter what they may say in their advertisements, maintaining their profit margin is always their chief concern and they use all available resources to achieve this goal. It is vital that people who have been injured understand that an insurance company is not their friend and does not have their best interests at heart.

When you are settling an injury claim, insurance companies have many advantages working in their favor, such as the benefit of personnel and financial resources. Insurance companies also know that injured individuals are often in desperate need of compensation and seldom realize the appropriate amount of money they deserve for their injuries.

Realizing this, many insurance companies delay processing claims and then offer settlements, which don’t take into account the various types of compensation to which an injured person may be entitled. This strategy is known as bad faith insurance tactics, wherein insurance companies try to deny or delay paying a valid claim. When insurance companies deny full payment, low ball, discount, pay late, or attempt to not pay out a claim, they are failing to carrying out their fiduciary duty and acting in bad faith. Under federal and Arizona state laws, an insurance company has an implied contractual covenant of good faith and fair dealing to persons covered, as well as third-party claimants. Under this law, an insurance company that engages in bad faith insurance tactics can be sued for both a contract claim and a tort claim.

At Baird Williams & Greer, we know what rights injured individuals have under Arizona law. We go toe-to-toe with insurance companies, working toward fair settlements, and we are prepared to go to court against bad faith insurance companies if necessary to obtain reasonable compensation for our clients.

When a person suffers an injury because of the negligence of another person, the responsible party (or his/her insurance company) is obligated to compensate the injured person. Typically, the total amount includes several types of economic and non-economic damages, which could include the following:

  • Past and future medical expenses
  • Past and future lost wages
  • Pain, suffering, disability, or loss of enjoyment in life
  • Loss of consortium and household services for a spouse
  • Punitive damages in cases or willful or reckless conduct

It is imperative that injured people recover full compensation, as serious injuries can have a substantial and permanent impact on their finances. Injuries can also strengthen the bargaining position of an injured party and oftentimes can convince an insurance company to offer a reasonable settlement.

It is difficult to overstate the importance of having an experienced attorney on your side when you are going up against an insurance company. You need an advocate in your corner to gather evidence and build a case which convinces the insurance company that the law is on the side of their client. If the insurance company remains intractable or engages in bad faith insurance tactics, experienced attorneys can file a bad faith claim against the insurance company to aggressively pursue compensation on behalf of their clients in court.

If you have been injured in an accident and need aggressive representation in a bad faith insurance claim, please contact Baird Williams & Greer to discuss your options.

Indivisible Injury and Apportionment of Fault

Arizona statutes require a common liability for the same injury as a predicate for the allocation of fault among parties and non-parties under A.R.S. § 12-2501.

In the case of multiple acts, is there a single, indivisible injury that gives rise to common liability?

The Restatement (Third) of Torts focuses primarily on whether there is a reasonable basis to divide liability based on causation, but distinguishes division by causation from apportionment of responsibility. Division by causation is the process by which one reduces a group of injuries which constitute indivisible injuries. Only after that is done is responsibility for each indivisible injury determined.

This is illustrated by two decisions. In Potts v. Litt, 171 Ariz. 98, 828 P.2d 1239 (App. 1991), Potts was involved in two automobiles collisions, 13 days apart. The court concluded that “even though it might have been difficult to apportion Potts’ damages, it was not impossible.” 171 Ariz. at 100, 828 P.2d at 1241. By the new Restatement view, it was possible to divide the damages by causation and unnecessary to apportion the responsibility, meaning that the case should have been litigated as essentially two separate claims against two separate defendants for two separate injuries. There was no common liability.

Piner v. Superior Court, 192 Ariz. 182, 962 P.2d 909 (1998), faced the same issue, but after the abolition of joint and several liability. Piner was hurt in a rear-end auto accident in the morning and called his doctor complaining of specific injuries. The doctor’s staff told him to call back in the afternoon. However, in the afternoon he was rear-ended again, called the doctor again, and complained of additional pains in the same parts of the body. Unquestionably both collisions contributed to his injuries. Piner argued that because there was an indivisible injury, the liability of both tortfeasors was joint and several.

The Supreme Court concluded that the indivisible injury rule survived despite the abolition of joint and several liability, relieving the plaintiff of apportioning damage according to causal contribution. If the facts make divisibility of the injury impossible, once plaintiff established that each tortfeasors contributed to his injuries, it was up to the defendants to establish who caused what part of the injury. This means that the jury must apportion not damages, but fault, and must do so for each accident. The plaintiff’s recovery will be the total damage sustained and the jurors will be instructed to allocate fault according to A.R.S. § 12-2506, i.e., for the amount of damages in direct proportion to the defendant’s percentage of fault.

In practice, cases like Piner will be rare. Most successive cases involve a factual dispute over whether the injury is indivisible. In that case the jury will first decide the division of damages, then the apportionment of fault. They will attempt to apportion damages from two successive accidents and then turn the page of the verdict form to find that they must then apportion fault for the two accidents.

Dealing with Non-Parties at Fault Defenses

Baird Williams Greer Legal AdviceA.R.S. § 12-2506(A) establishes several liability in Arizona. The statute holds that each defendant is liable only for the amount of damages allocated to the defendant in direct proportion to the defendant’s percentage of fault. Section 12-2506 also provides that when assessing the percentages of each defendant’s fault, the fact finder “shall consider the fault of all persons who have contributed to the alleged injury. . . regardless of whether the person was, or could have been, named as a party to the suit.” The percentages of fault assessed against such “non-parties are used only as a vehicle for accurately determining the fault of the named parties.” Assessment of fault against a non-party does not subject a non-party to liability.

This portion of the comparative negligence/fault statutes in Arizona has been interpreted very broadly.

While evidence of other tortfeasors’ negligence, intentional wrongdoing, or strict liability, is still subject to Supreme Court interpretation, existing case law supports a very broad inclusion of all entities’ fault comparisons. This is of considerable advantage to a defendant who can designate non-parties at fault, resulting in the “laying off” of defendant’s liability to a non-party, which cannot defend itself. Notice of non-parties at fault must be given early in the case.

A defendant must designate non-parties at fault within one-hundred fifty days of the answer. Rule 26(b)(5). Additional time may be granted upon motion based upon newly discovered evidence.

Practice pointers. Practioners should file suit with time to spare before the statute of limitations runs, so that the 150 day deadline for naming non-parties at fault comes with sufficient time to amend the complaint to add new parties before the statute runs. Uniform Personal Injury Interrogatory, No. 5 should be served with the complaint seeking identity of non-parties at fault, facts supporting such designations and legal theories of why the non-party is at fault.

Jay Dobyns | Client Testimonial

(Left to Right)  BWG Paralegal Jeff Elder, BWG Client Jay Dobyns, BWG Attorney James Reed, BWG Associate Carson Emmons

(Left to Right) BWG Paralegal Jeff Elder, BWG Client Jay Dobyns, BWG Attorney James Reed, BWG Associate Carson Emmons

Dear Messrs. Baird, Williams and Greer,

With the closing arguments of Dobyns v. USA concluded, I wanted to send you a brief message.

First, thank you for your undying support to me during this case.  The courage that you displayed to allow your firm to represent me is immeasurable.

Jim is an extraordinary attorney.  I am supremely honored to call him my lawyer.  During the five years he has worked on this case and a Department of Justice and ATF that said they would out-resource us from the beginning, Jim never forfeited his commitment or integrity.  His work ethic is unlike anything I have ever seen.  The stamina and resilience he has displayed over 5 years is nothing short of amazing.

Carson routinely proved himself to be intelligent in his work and eloquent is his writing.  His research and legal insights were over and over and over simply tremendous.

Jeff was a remarkable workhorse.  There was no task too big, small, complex or simple that he did not overachieve on.  During each court appearance, Jeff out-performed the best DOJ had to offer, and his work was not one single time trumped by anything his DOJ peers could muster.

Your staff was always friendly, kind, supportive and displayed to me the hospitality that I believe few firms would ever grace a client with.

Upon exiting the courtroom on Tuesday, all I heard was how “remarkable” and “brilliant” my lawyers were.  I took a huge sense of personal pride in that.  Jim, Carson and Jeff have become family to both me and my family.

I know that I am not telling you anything that you do not already know.  I hope your sense of pride in Jim, Carson and Jeff is overflowing.


Jay Dobyns