Arnold v. Nat’l Co. Mut. Fire Ins. Co. - Cooper & Scully Party Bad Faith Cases after... · Arnold v. Nat’l Co. Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987) “However, we would

Arnold v. Nat’l Co. Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987)

“However, we would point out that exemplarydamages and mental anguish damages arerecoverable for a breach of the duty of good faithand fair dealing under the same principles allowingrecovery of those damages in other tort actions.”

“A cause of action for breach of the duty of goodfaith and fair dealing is stated when it is allegedthat there is no reasonable basis for denial of aclaim or delay in payment or a failure on the partof the insurer to determine whether there is anyreasonable basis for the denial or delay.”

Aranda v. Ins. Co. of North America, 748 S.W.2d 210 (Tex. 1988)

“It is well established under Texas law thataccompanying every contract is a common law dutyto perform with care, skill, reasonable expedienceand faithfulness the thing agreed to be done, and anegligent failure to observe any of these conditions isa tort as well as a breach of contract.”

“This duty of good faith and fair dealing arises out ofthe special trust relationship between the insuredand the insurer. . .”

Claimant/Insured must establish:

a. The absence of a reasonable basis for denyingor delaying payment of the benefits of thepolicy; AND

b.That the carrier knew or should have knownthat there was not a reasonable basis fordenying the claim or delaying payment of theclaim.

Under the test, carriers will maintain the right todeny invalid or questionable claims, and will not besubject to liability for an erroneous denial of a claim.

Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663 (Tex. 1995)

“A breach of contract alone will not support punitivedamages; the existence of an independent tort mustbe established . . . actual damages sustained from atort must be proven before punitive damages areavailable.”

The Texas Supreme Court says that Vail means thatpolicy benefits wrongfully withheld can be actualdamages, but policy benefits wrongfully withheld willnot alone support an award of punitive damages.

The Court leaps to the conclusion that other TexasCourts have consistently recognized the independentinjury requirement when dealing with bad faith claimsbrought against a carrier covered by the Worker’sCompensation Act, and seemingly extends suchholding to all bad faith actions in the first-party area.

“Our holdings in Arnold and Aranda aredeterminations pursuant to law that insurer’s lack ofgood faith in processing a claim is an unfair ordeceptive act. The Vails therefore stated a cause ofaction for unfair claims settlement practices under theDTPA and the Texas Insurance Code.”

Vail v. Texas Farm Bureau Mutual Ins. Co., 754 S.W.2d 129(Tex. 1988)

Waite Hill Svcs. v. World Class Metal Works, 959 S.W.2d 182(Tex. 1998)

By per curium opinion, Texas Supreme Court heldthat the damages awarded for both breach ofcontract and the extra-contractual causes of actionwere conclusively for the same loss, and reversed,saying that no double recovery would be allowed.

.

Republic Ins. Co. v. Stoker, 903 S.W.2d 338

Trial Court granted summary judgment on thecontract issue; there was no coverage, but submittedto the jury alleged violations of the Insurance Codeand breach of duty of good faith and fair dealing.

The Court acknowledges that breach of the duty ofgood faith and fair dealing is established when: (a)there is an absence of a reasonable basis for denyingor delaying payment of benefits under the policy, and(b) the carrier knew or should have known that therewas not a reasonable basis for denying the claim ordelaying payment of the claim, citing Arnold andAranda.

The insured argues that because a policy claim issupposed to be independent of a bad faith claim, thatan insured should be allowed recovery for a bad faithdenial of a claim even if the claim is not covered bythe policy, citing Transportation Ins. Co. v. Moriel,879 S.W.2d 10 (Tex. 1994).

While this language was used in later decisions by theTexas Supreme Court to support its proposition thatto recover damages in a bad faith case, the conductmust give rise to damages other than the damagesrecoverable under the policy, it is clear that the focusin Stoker was that there was no coverage, so thereshould be no bad faith.

Texas Supreme Court fails to find that an insurer canbe liable for alleged improper denial of a claim whereit is not covered by the policy, though does state, “wedo not exclude, however, the possibility that indenying the claim, the insurer may commit some act,so extreme, that would cause injury independent ofthe policy claim.” See Aranda.

Provident American Ins. Co. v. Castañeda, 988 S.W.2d 189(Tex. 1998)

This case involved a medical insurance policy withnumerous exclusions, some of which were utilized atdifferent times by the insurer because of variousmedical conditions requiring the removal ofgallbladders in two children of the main insured.

Only statutory claims were tried and no common lawbad faith claim was submitted.

The Court held that evidence of coverage, standingalone, would not constitute evidence of bad faithdenial, because a bona fide coverage dispute is, as amatter of law, no evidence that liability under thepolicy had become reasonably clear, nor can itconstitute evidence that there was no reasonablebasis for denying the claim.

The Texas Supreme Court assumed that there wascoverage in this matter, but stated that not everyerroneous denial of a claim subjects an insurer toliability, citing Republic Ins. Co. v. Stoker, supra.

“With regard to the damages that might be recoverableif an insurer failed to adequately investigate a claim, weindicated in Stoker that failure to properly investigate aclaim is not a basis for obtaining policy benefits. . . eventhe concurring justices in Stoker agree that the mannerin which a claim is investigated must be the proximatecause of damages before there could be a recovery. . .none of the actions or inactions of Provident American[here] was the producing cause of any damageseparate and apart from those that would haveresulted from a wrongful denial of the claim.”

“Provident American contends and we agree that itsconduct in handling the claim did not cause any injuryindependent of the denial of policy benefits. The onlydamages awarded by the jury that were not policybenefits were for loss of credit reputation. But any lossof credit reputation stem from the denial of benefits,not from any failure of Provident American tocommunicate with Castañeda or to properly investigateher claim.”

The dissent by Justice Gonzalez seems to properlyanalyze Stoker as holding that because of no coveragethere, then no bad faith; hence, Justice Gonzalez drawsa link between the independent requirement fordamages, namely that if there is no coverage, it will bevirtually impossible to show an independent recoveryand damage, whereas if there is coverage, such as inCastañeda, then as long as there is some evidence tosupport a recovery of damages independent of thepolicy benefits, recovery should be allowed.

Nevertheless, many commentators read Castañeda tosay that regardless of coverage, whether it exists ordoes not exist, the requirement does exist for injuriesindependent from those that would normally resultfrom the denial of the claim, or no recovery anddamages would be allowed for extra-contractualliability.

This became the key issue as to arguments and casesover the next 15 years.

Namely, does Vail still exist, and if so, was itnarrowed in Castañeda, or was there an anomaly thatcould be distinguished in later cases.

Parkans Int’l. v. Zurich Insurance Co., 299 F.3d 514 (5th Cir. 2002)

The Court found there was no coverage, and thus nobreach of contract.

The Court also made an interesting holding, whichsame may view as dicta, but bears close study,

“Moreover, the jury essentially found no tort injuriesindependent of the contract damages. There can beno recovery for extra-contractual damages formishandling claims unless the complained of actionsor omissions caused injury independent of those thatwould have resulted from a wrongful denial of policybenefits.”

Interestingly, the Court’s holding or dicta, as somehave said, makes no reference to the fact thatbecause there was no coverage, then there could beno wrongful denial of policy benefits; thus, insurershave relied upon this case for showing that the 5thCircuit has likewise required an independent injury orno extra-contractual damages will be allowed.

Wellisch v. USAA, 75 S.W.3d 53 (Tex.App—San Antonio,2002, no pet.)

“To recover damages under either the common law orthe Insurance Code and DTPA, the violations must be aproducing cause of the insured’s damages; that is, themanner in which the claim is investigated must be theproximate cause of the damages as well with respect tobreach of the duty of good faith and fair dealing.”

United Services Auto. Assn. v. Gordon, 103 S.W.3d 436(Tex.App—San Antonio, 2002, no pet.)

The Gordons sued, and obtained jury findings that USAAfailed to comply with the policy, engaged in unfairdeceptive acts and practices, and failed to comply withits duty of good faith and fair dealing.

The Gordons elected to recover on their DTPA claim plusattorney’s fees.

On appeal, USAA was able to show the Appellate Courtthat the only damages proven and awarded weredamages arising from denial of the claim.

“We agree with USAA that the Gordons failed to proveany damages apart from those stemming from thedenial of the claim. An insured is not entitled to recoverextra-contractual damages unless the complained ofactions or omissions cause injury independent of theinjury resulting from a wrongful denial of policybenefits.”

Thus, the Appellate Court reversed and rendered thatUSAA was not liable for any extra-contractual claims.

Minnesota Life Ins. Co. v. Vasquez, 192 S.W.3d 774 (Tex. 2006)

“When insurers are negligent, the Texas InsuranceCode does not grant policyholders extra-contractualdamages. Instead, such damages are reserved forcases in which an insurer knew its actions were false,deceptive, or unfair.”

“We agree that when coverage is not reasonablyclear, an insurer cannot sit on its hands or draw outan investigation to keep things that way. . .[however], there must be evidence that the insurerwas actually aware that it was handling the claim in away that was false, deceptive or unfair. . . the lowerCourts erred in awarding extra-contractual damages.”

Laird v. CMA Lloyds, 261 S.W.3d 322 (Tex.App—Texarkana, 2008, no pet.)

Dispute arose over a homeowner’s policy and whetherthe insurer owed additional sums for water leaks.

“An insured is not entitled to recover extra-contractualdamages unless the complained of actions or omissionscaused injury independent of the injury resulting from awrongful denial of policy benefits. . .” citing Castañeda,Gordon, and Parkens. “The threshold of bad faith isreached when a breach of contract is accompanied byan independent tort. Evidence that merely shows abona fide dispute about the insurer’s liability on thecontract does not rise to the level of bad faith.”

Mai v. Farmers Tex. Co. Mutual Ins. Co., 2009 WL1311848 (Tex.App—Houston [14th Dist.] 2009)

Case involved an uninsured motorist claim byPlaintiff.“Here, any finding of failure to properly investigatewould not by itself mean that the claims werecovered under the insurance policy; in other words,the alleged failure to properly investigate did notresult in claim damages.”

United National Ins. Co. v. AMJ Investments, 447 S.W.3rd 1(Tex.App.—Houston [14th Dist.], pet. for review filed by12/19/2014

Claims brought against United:

1.Breach of contract and bad faith.

2.Bad faith.

a. Traditionally constituted breach of the dutyof good faith and fair dealing; and

b. Violations of the Texas Insurance Code andDTPA.

Now essentially subsumed in an alleged acceptablejury issue.

Jury found breach of contract.

Jury found $300,000.00 as the difference betweenthe amount of damages caused by Hurricane Ike thatwere covered under the policy and the amountactually paid.

Jury found that United engaged in an unfair deceptiveact or practice that caused damage.

Jury found that $300,000.00 would be compensationfor such damage for the alleged unfair deceptive actor practice.

Judgment entered on the bad faith theory of liability,since it allegedly supported actual and statutoryadditional damages, along with prompt paymentpenalties and attorney’s fees.

Appellate points:

1.Whether the evidence was legally and factuallysufficient to support the finding that United failed toattempt in good faith to effectuate a prompt, fair,and equitable settlement of a claim when its liabilityhas become reasonably clear.

2.Whether the evidence was legally and factuallysufficient to support the award of compensatorydamages.

3.Whether the absence of a separate injury preventsthe insured from recovering amounts due under thepolicy as alleged damages for an Insurance Codeviolation.

4.Whether there was legally and factually sufficientevidence that United knowingly violated theInsurance Code.

The Court found that the absence of an independentjury did not foreclose liability for United’s allegedviolation of the Insurance Code.

As a matter of law, damages exist for the unfair refusalto pay the insured’s claim in at least the amount of thepolicy benefits wrongfully withheld.

United argued on appeal that the judgment could notbe rendered under the Insurance Code for amountsowed under the policy, and relied under Castañeda,supra.

Appellate Court distinguished Castañeda, byessentially stating that the insured had pleaded andproved that its claim was covered, and that Unitedbreached the contract.

Thus, the Appellate Court held that as a matter of lawUnited’s failure to pay when its liability wasreasonably clear caused the insured to be damaged inan amount at least equal to the amount of theinsurance proceeds that were wrongfully withheld,citing Vail.

Impact of decision:

1.Potentially re-establishes Vail.

2.Severally limits Castañeda.

3.Arguably repositions or correctly states that Stokerapplies only to a non-covered claim.

4.Arguably suggests that if Castañeda did involve acovered claim, then plaintiff failed to plead and provebreach of the contract, which should have been doneaccording to the Court, thus allowing Castañeda to bedistinguished.

5.Arguably, the independent injury analysis has beenturned on its head.

Petition for Review at the Texas Supreme Court:

1.Whether there is legally sufficient evidence to support theaward of actual damages when there was no evidence thatthe repair costs sought were reasonable or necessary?

2.Can policy benefits, basically the damages flowing from theinsurer’s breach of contract, serve as the actual damagesnecessary to support an insured’s claim for recovery underSection 541 of the Texas Insurance Code, or are such claimsunder the Insurance Code precluded as a matter of lawbecause there is no independent injury?

3.Whether there is legally sufficient evidence that the allegedInsurance Code violations were a producing cause ofdamages when the jury found that the same damagesoccurred solely as a result of the alleged breach of contract;thus, can there be legally sufficient evidence whenessentially there is no independent injury?

4.How can an insurer be found to have failed to attempt ingood faith to effectuate a prompt, fair, and equitablesettlement of a claim or how can an insurer’s liability becomereasonably clear when multiple experts opine that the itemson which the insurer questions coverage were not within thescope of the policy; in other words, doesn’t Castañeda andVasquez require, as a matter of law, that the Court find nobad faith because a bona fide dispute exists with respect tothe claim itself and the reasonableness of the investigation?

The independent injury rule essentially boils down tothis: are contractual benefits awardable as damagesunder the Texas Insurance Code?

1.Arguably, Castañeda and its progeny appeared tosay “no;” AMJ appears to say “yes,” basing its holdingsolely on Vail.

Amicus Curiae:

Need for the Court to square whether the independentinjury rule requires a covered or uncovered claim, orwhether that distinction is meaningless.

Specific issues:

a.Whether the alleged Insurance Code violation hasbeen shown to be a producing cause of damages,without which the damages would not have occurred;arguably where the same damages would haveoccurred as a result of the policy breach alone,regardless of whether the jury finds an Insurance Codeviolation, then the Insurance Code violation should notbe considered a producing cause of damages as amatter of law.

b.Otherwise, extra-contractual damages would be aroutine addition to every breach of policy case, inviolation of the principles outlined by the TexasSupreme Court in Vasquez.

c.Thus, theoretically, and to be consistent, even wherethere has been no contract breached, damages maybe recoverable under the Insurance Code if theviolation is shown to have caused damages, such aswhere the violation caused a delay and a policyholdermade repairs, the building deteriorated in the interimmaking the repairs more expensive, and even thoughsuch additional amounts would not be recoverableunder the policy, such damages would be independentfrom the amounts owed under the policy, and shouldbe recoverable as a potential Insurance Code violation.

Is this a good idea?

a.Do we really want insurers exposed to extra-contractual damages when there is no policycoverage?

b.Is it better to have a rule such as Stoker, wherethere is no coverage, and hence, no possible way forany extra-contractual liability or damages.

c.Which poison does the insurer choose?

Rocha v. Geovera Specialty Ins. Co., 214 U.S. Dist. LEXIS 1990;2014 WL 68648

A Motion to Remand case because of the joining ofthe adjusters, defeating diversity jurisdiction.

Insurer, which had diversity of jurisdiction citizenshipas to the plaintiff, asserted that the allegations didnot indicate the specific type and independent natureof the damages which would be recoverable againstthe adjusters based on an extra-contractual claim,and thus the adjusters were not properly joined.

The Court stated that the reliance by the insurancecompany on Castañeda, was only effective as to theanalysis since Castañeda did indeed require thatclaims under the Texas Insurance Code establish adefendant’s conduct was the cause in fact of theplaintiff’s actual damages.

Hamilton Properties v. American Ins. Co., 2014 U.S. Dist. LEXIS91882; 2014 WL 3055801

Involved alleged property damage following a hailstorm.

Insurer denied coverage, contending that thedamages could fall under the wear and tear exclusion,among other exclusions.

Court found that the plaintiff failed to meet itsburden of proof to show that the claim was covered,as opposed to normal wear and tear or because ofother non-covered perils, and granted summaryjudgment for the insurer on plaintiff’s breach ofcontract claim.

As to the bad faith type actions, the Court favorablycited Stoker, stating that generally there could be noclaim for bad faith when an insurer has promptlydenied a claim that is in fact not covered, but didmention the exception that if the insurer committedan act so extreme that it would cause injuryindependent of the policy claim, then an extra-contractual claim may still survive.

Cardona v. ASI Lloyds, 2015 U.S. Dist. LEXIS 1477, NorthernDistrict of Texas, Dallas Division

Based on Rocha v. Geovera Specialty Ins. Co.,supra, at the Motion to Remand stage, allegationsthat the adjuster was directly responsible forcommitting violations of the Insurance Code doesindeed satisfy Castañeda’s independent injuryrequirement.

USAA Texas Lloyds Co. v. Menchaca, 2014 Tex. App. LEXIS8250; 2014 WL 3804602

Hugely important Hurricane Ike decision from theCorpus Christi Court of Appeals.

The jury found that USAA did not fail to comply withthe terms of the insurance policy.

The jury answered “no” as to every unfair ordeceptive act or practice that was presented to themwith the exception that the jury found that USAA didrefuse to pay a claim without conducting areasonable investigation with respect to a claim.

The jury awarded small damages; the question waspredicated on either an affirmative finding regardingbreach of contract or an affirmative finding of anunfair or deceptive act or practice; worse, the issuecontained an instruction that,

“The sum of money to be awarded is thedifference, if any, between the amount USAAshould have paid Gail Menchaca for herHurricane Ike damages and the amount thatwas actually paid.”

After the verdict, USAA moved for entry of judgment inits favor on the basis that when no breach of contract isfound, there could be no bad faith or extra-contractualliability as a matter of law.

Menchaca’s lawyers argued that the jury’s “no” answeron breach of contract should be disregarded because itwas immaterial.

The Court did indeed decide to disregard that juryfinding, and render judgment on the affirmative findingon extra-contractual claims, including the damagesstandard of the difference between the policy benefitsand what was actually paid.

“Absurd to allow plaintiff to recover damages on the basisthat the insurer failed to promptly pay a claim if the claimwas not covered by the policy in the first place. On theother hand. . . as to unfair settlement practices, [such] dealswith reasonable investigations. . . there is thus, a duty on aninsurer, above and beyond the duties established by theinsurance policy itself, to conduct a reasonable investigationprior to denying a claim. It follows that USAA could havefully complied with the contract even if it failed toreasonably investigate Menchaca’s claim. [Further], even ifUSAA is correct that a claim based on an insurer’s failure toconduct a reasonable investigation is barred when there is afinding of no coverage, the jury’s answer to Question No. 1does not definitively establish that there was no coverage.[After all], the parties do not dispute that Menchaca’s policygenerally covered damage to her property caused byHurricane Ike. . . “

As to damages, USAA specifically argued that the plaintiffcould not recover extra-contractual damages unless thecomplained of actions or omissions caused injuryindependent of the injury resulting from an allegedwrongful denial of policy benefits, citing Gordon, ParkansInt’l., and Castañeda.

The Court is forced to acknowledge that Castañeda clearlystated that,

“Failure to properly investigate a claim is not a basisfor obtaining policy benefits.”

However the Court notes that Castañeda favorably citedStoker, which held,

“Whether an insurer breaches his duty of good faithand fair dealing to its insured if it denies a claim foran invalid reason when there was at the time a validreason for denial. . .” was found in the negativebecause the claim was not covered.

The Court distinguishes Castañeda and Stoker accordingly,by finding that Menchaca’s claim was indeed coveredunder the USAA policy; thus, the Court holds,

“We believe that this case, therefore, constitutes anexception to the general rule that breach of thepolicy must be established before policy benefitsmay be recovered.” Improperly citing Aiken, 927S.W.2d at 629; and [arguably, improperly] citingStoker, 903 S.W.2d at 340-41.

The Court concludes as follows:

“Under the unique circumstances presented in thiscase, USAA did not breach the policy but policybenefits are indeed the correct measure of damagescaused by USAA’s violation of the Insurance Code.”

Petitioner, USAA, presents the following issues:

1.When a jury rejects an insured’s claim that the insurerbreached its contract, is the insured precluded fromrecovering on an extra-contractual claim?

2.When a jury rejects an insured’s claim that the insurerbreached its policy, can the insured nevertheless recoverpolicy benefits if the same jury finds fault with the insurer’sinvestigation?

3.Can a Trial Court disregard a jury question that is derivedfrom the pleadings, tried to a jury, and allegedly supports aTake Nothing Judgment in the defendant’s favor?

USAA states plainly that an insurer has a contractualobligation to pay covered claims, but because an insurerhad no obligation to pay any additional amounts under thepolicy, and thus no contractual duty would be owed, thenextra-contractual provisions of the Insurance Code shouldnot support recovery of contractual benefits.

USAA cites Castañeda, and says that the Texas SupremeCourt has squarely held that a failure to properly investigatea claim is not a basis in itself to require an insurer to paypolicy benefits to its insured, and where the insured, such ashere, proves no injury independent of what she alleged shewas owed under the policy, and such was $0 because therewas no contractual breach, then her claim should be barred,including any alleged extra-contractual claim.

Menchaca’s lawyers contend that Castañeda is similar toStoker, requiring that there be no coverage to eviscerate afavorable finding of extra-contractual damages, namelythe benefit of the bargain type damages.

Menchaca’s lawyers strongly argue based upon Stoker,Twin City Fire v. Davis, Vail, and Transportation Ins. Co. v.Moriel, that the claims for insurance contract coverage areindeed distinct and separate from those for bad faith, andthe resolution of one allegedly does not determine theother, nor can it ever determine the other.

Both Menchaca’s lawyers and the amicus curiae in AMJInvestments seemingly state that a breach is not anecessary predicate to extra-contractual liability.

Menchaca’s lawyers suggest that while Castañedaprovides that extra-contactual claims do not automaticallygive rise to damages equivalent to policy benefits if theclaims are not covered, such does not allegedly help USAAbecause the claims were indeed covered regardless of thefinding that a contract was not breached.

Reliance on Castañeda is criticized by Menchaca’s lawyersbecause in Stoker, the statement that there could be noclaim for bad faith when an insurer has promptly denied aclaim that is in fact not covered, is not the situation inCastañeda or allegedly in this case.

WHERE DO WE GO FROM HERE?

What does independent injury now mean?

1.If a claim is not covered, should an insurer always win?

2.If there has been no contract breach, should an insureralways win?

3.If the only damages for extra-contractual claims are loss ofpolicy benefits, is the independent injury analysis theneviscerated?

4.Will it suffice to simply say that an alleged Insurance Codeviolation cannot have been a producing cause of damagesas a matter of law where the same damages would haveoccurred as a result of the policy breach?

Should there now be a jury issue on whether a claim wascovered under the policy, separate and independent ofwhether the policy was breached?

Should it now be argued that a Court should never allow ajury to determine extra-contractual damages even if there isa breach of contract, unless the jury is instructed that noaward can be made unless there are independent damagesfrom the policy benefits?

Insurance guidance? GOOD LUCK!