When the insurance company is not being fair

In today's blog post, I am going to address some questions I'm often asked about insurance companies and whether or not they have to treat policy holders or injured folks fairly.  While the laws in West Virginia have changed in the last ten years (cutting back on the protections that injured people have) most of the time insurance companies must treat consumers fairly.

What can be done when an insurance company is treating a claim unfairly?

Anytime someone is potentially benefiting from an insurance policy, whether it be life, accident, home or auto, that person should be treated fairly.  However, that does not always happen. Sometimes insurance companies decide to make it difficult for a claim to be processed or for the injured person to recover.  In that situation, the insurance company is often acting in "bad faith."  Sometimes, that can result in further litigation.  In other circumstances, a complaint can be filed with the insurance commissioner.  It is always best to speak with a lawyer if you believe that you are not being treated fairly.

What is "bad faith"?

When I first started in private practice in the late 1990's, one of kinds of cases that I filed a number of complaints in were cases involving   "insurance bad faith."  While that is not as common today as it was then (for reasons I'll describe in a bit) it is still a cause of action, or the basis for a lawsuit.  When a person is a beneficiary of an insurance policy that he or she purchased to cover an injury, the laws in most jurisdictions require that when that person files a claim with the insurance company, the company has the duty to process the claim in good faith.  This generally requires that the insurance company responds in a timely fashion to communications and that the insurance company makes reasonable offers to settle claims.  In West Virginia, there are very specific things that the insurance company must do that are established by statute and regulation.  You can find those regulations here: . There are also certain duties that are implied in the insurance contract that can be enforced against the insurance company. 

What are some of the things that the regulation require  that insurance companies do?

These are requirements about communication:

  • the insurance company must provide the claimant with penitent policy provisions.
  • the insurance company has to acknowledge the receipt of a claim within fifteen days.
  • the insurance company has to provide the claimant with forms when they want to make a claim.

If a claimant files a claim, the insurance company has further duties.  They include: Every insurer shall promptly conduct and diligently

  • the insurance company has to pursue a thorough, fair and objective investigation
  •  the insurance company may not unreasonably delay resolution by persisting in seeking information not reasonably required
  • if the insurance company is going to require a specific form, in most situations, they must provide the form required within 15 days.
  • in most situations, the insurance company has to deny the claim or make a written offer within 10 days of completing the investigation.
  • the insurance company has to provide specific policy provisions if they are going to deny a claim

With respect to payment on a claim:

  •   the insurance company has a duty to offer reasonable amounts if there is no dispute as to liability or coverage
  • the insurance company has 15 working days to pay on a claim once there is an agreement

So what does this regulation mean to you?

  • If you are injured in an accident, the insurance company has to treat you fairly.  If they do not:
    • If it is YOUR insurance company, you may have a cause of action or a suit against the company and/or a complaint with the insurance commissioner.  In many cases, you may receive additional amounts as damages for their failure to comply with the requirements of treating your fair.
    •  If it is the OTHER person's insurance company, you may file a complaint with the insurance commissioner.
  • If you have other insurance claims, such GAP insurance
  • You may also be able to pursue a bad faith claim against your insurance company.

What does first party bad faith and third party bad faith mean?

If the bad faith action is by your own insurance company, that is first party bad faith.  In that circumstance, West Virginia law supports a claim for you to file suit against the insurance company.  Unfortunately, in 2005, the West Virginia legislature enacted new laws that make it nearly impossible for you to file suit in "third party bad faith" or when another persons’ insurance company is treating you unfairly.  

What should I do?

When you are dealing with an insurance company, set up a file and keep all of your notes, letters and records.  If you have questions about whether or not you are treated fairly, call me, email me or come by the office so that we can discuss your situation and determine what can be done for you to receive what you are due from the insurance company. 

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BRENDA WAUGH SELECTED AS ONE OF THE BEST DC AREA MEDIATORS IN 2016

Best Arbitrators & Mediators in Washington

I’ve often found it difficult to locate folks to help me with a problem—whether I’m looking for someone to help with a home repair, a new veterinarian or accountant. While I often use websites like tripadvisor.com to evaluate reviews for vacation planning, when I’m looking for someone to have a more significant and longer-term relationship with, those reviews can seem insufficient. 

Several websites have developed to try to address this need, but many, operate on a very simple platform, with no vetting or evaluation of credentials.  They post any review that is submitted.   Some websites, such as avvo.com,  provide more valuable and detailed information to help the consumer by evaluating some of the credentials, including publications, education, and awards.  

A new group, headquartered in Seattle, is working to create a directory professions and services that include objective evaluations and recommendations.  Expertise.com uses a complicated set of algorithms to review professionals and then individually evaluates each company on five criteria: reputation, credibility, experience, availability, and professionalism. While I’ve always enjoyed my 5-star rating on AVVO, my recent selection by expertise.com as one of the top mediators in the Washington D.C. area makes me very proud of the work I’ve done over the last ten years to build a firm that offers a wide variety of non-adversarial processes to resolve conflicts. Joining other mediators such as attorney Nancy Lesser with Pax ADR L.L.C. and David Goldberg with Family Mediation Services, Inc., places me in good company with other qualified mediators. 

 The criteria that Expertise.com employs can help someone looking for mediation services to evaluate mediators.   One of the criteria they use is “credibility, defined as building customer confidence with licensing, industry accreditations, and awards.” I enjoy my direct client contact, such as working with crime and accident victims or working with litigants in mediation.  I’ve had the opportunity to present my research at many conferences. I’ve also published several law review articles and had the opportunity to conduct workshops throughout the United States in the areas of mediation and restorative justice.  Some of my devotion to the work stemmed the early part of my career when the West Virginia State Bar awarded me a certificate of merit for my work with children.

Last week I participated in a webinar with the Zehr Institute, on one of my favorite topics:  restorative lawyering.

Last week I participated in a webinar with the Zehr Institute, on one of my favorite topics:  restorative lawyering.

Another criteria cited by experise.com is experience.  They define it as “Masters of their craft, based on years of practical experience and education.”  I’ve worked very hard to acquire the experience and knowledge that I bring to my work. First of all, I am a lawyer with a JD and a mediator who has an MA in conflict resolution. That education distinguishes me from many mediators in the United States. Many mediators in the area do not have a law degree and have not had over 30 years practicing law. While you don't necessarily need a lawyer to be your mediator, in cases where there are legal questions or when the conflict is framed in the legal process, a lawyer is often best suited to be able to get to the heart of the matter. 

Some lawyers are lawyers first and then become mediators.  I followed that path.  However, most lawyers take courses that are 20 or 40 hours long, in total, to become mediators. They are often very heavy handed in how they mediate and may tend to be evaluative and settlement focused. Since I also went back to school after being a lawyer for 20 years and earned a master's degree in conflict resolution.  That required two years of full-time course work and practical study acquire the degree.  I learned new skills such as both transformative mediation and facilitative mediation. I also studied a variety of methods of negotiation.  Of course, I also took many courses in restorative justice.  All of this advanced education has helped me become both a better legal advocate and mediator.

Expertise.com also looked at factors such as availability, reputation, and professionalism in providing the ranking.  I am pleased to bring all of these factors to every case that our office accepts.  I look forward to continuing to learn more and improve the services that we provide to our legal and mediation clients.