Navigating Bad Faith Claims by Non-Insureds (“Third-Party Bad Faith Claims”): Differing State Laws and the New ALI Restatement of the Law of Liability Insurance

A bad faith claim may arise when an insurer fails to settle a claimant’s liability claim brought against its insured for an amount within the policy limits and a verdict over the limits is then obtained, exposing the insured to liability for the excess amount. While it is generally accepted in many jurisdictions that, under certain circumstances, the insured has a right to recover from the insurer the total amount of the judgment, even if it exceeds the policy limits, the rights of non-insureds (typically the plaintiffs who brought the lawsuit against the insured in the first place) are less certain under these circumstances. Notably, some states allow the non-insured claimant to bring lawsuits for the insurer’s bad faith failure to settle the claim within the policy’s limits. Where allowed, such claims may be based in the common law or in state statutes governing the situation.

These claims, if proven, can lead to significant damages awards against insurers. There are other effects as well: to cite but one example, a 2018 report by the Insurance Research Council estimated that between 2006 and 2017, Florida’s non-insured bad faith rules resulted in $7.6 billion more in claims than otherwise expected.

Listen as our panel of insurance law specialists examines non-insured bad faith claims from the perspective of both the policyholder and the insurer, particularly in light of recent cases and the 2018 ALI Restatement on Liability Insurance. The panel will discuss best practices and strategies for each side in litigation where a non-insured has brought a bad faith claim against an insurer.

1. Overview
2. State laws and recent developments
3. ALI 2018 Restatement of Liability Insurance
4. Policyholder perspectives
5. Insured perspectives
6. Best practices and practical strategies

The panel will review these and other key issues:

• Which states allow statutory non-insured or third-party bad faith claims?
• Which jurisdictions allow common law non-insured or third-party bad faith suits?
• What are the elements that support a claim of a non-insured or third-party bad faith?
• What are the insurers’ and the policyholders’ obligations?
• What are effective methods for a non-insured to prove an action for non-insured or third-party bad faith, and what are the insurers’ best defenses to such claims?
• What are the most recent cases affecting these types of claims?
• What impact has the ALI’s 2018 Restatement of Liability Insurance had on third-party bad faith litigation?