Commentary by William Parra & Corey Reichardt
On May 3, 2021, Bill A7285 was introduced in the NY State Assembly, which would create a private right of action for policyholders and personal injury claimants to bring suit against insurers for “bad faith” or unfair claims settlement practices, such as an insurer’s unreasonable delay or refusal to settle a claim. The bill appears to apply to both first and third-party claims. This type of statute has had a significant impact on the insurance landscape in states such as Florida and California, increasing claim and litigation costs.
The latest NY bill is significantly more comprehensive than similar bills proposed in 2020-21. Given that the NY State Assembly and Senate have both been democratically controlled under a democratic Governor since 2019, a trifecta not seen since 1992 (other than 2010-11), a democratically-sponsored bill of this type has its best chance of being enacted in decades.
The bill proposes to amend provisions of the NY Ins. Law to create a private right of action against insurers by creating liability against them for a comprehensive list of reasons, including:
The bill also provides that any insured that established liability under the statute will be entitled to recover, in addition to the amount due under the policy, costs, disbursements, consequential damages and attorneys’ fees incurred in bringing suit, pre-judgment interest from the date of loss and punitive damages. The bill further provides a private right of action for injured claimants to recover similar damages, including pre-judgment interest from the time of the failure to offer a fair and reasonable settlement and punitive damages not limited to the policy limits.
The bill requires an underlying claimant to issue an insurer a written demand and the basis for the unfair settlement claim at least 30 days before filing suit. An insurer who within 30 days of receipt of this demand issues a written tender of settlement which is rejected by the claimant, may limit his exposure in a subsequent action under the statute to the settlement amount the insurer offered, if the finder of fact determines the insurer’s settlement offer was reasonable. If the trier of fact finds for the claimant, however, his recovery under the statute will be the amount of actual damages or up to 3 but not less than 2 times the actual damages, regardless of the policy limits, if the trier of fact determines the unfair claims practice was either a willful or knowing violation, or not reasonably justified and the insurer had knowledge or reason to know that the act or practice was a violation.
The bill separately requires that an insurer provide an insured or claimant with its entire claims file, within 30 days of a demand for same. Again, it is unclear whether attorney-client, attorney work product and similar privileges are intended to apply to such claims file disclosure requirements. However, the impact on the litigation process of claimants being entitled to insurer claims files upon demand are potentially game-changing.
Should any portion of this bill be enacted, it will become even more imperative for insurers to work with coverage counsel to ensure compliance with the additional statutory requirements for reservation of rights, disclaimer and other coverage position letters in situations where a disclaimer of coverage may be based on non-coverage grounds (not specifically required now), or risk incurring these new consequential and punitive damages. We will be monitoring the progress of the bill closely.