A) The insured/claimant must establish it acted in good faith in attempting to settle the claim by:
The obligation to seek to settle insurance claims in good faith should be a two-way street.
16) On the carrier's motion for summary judgment, the trial court dismissed the bad faith action finding the carrier's refusal to accept plaintiff's original offer to settle "caused no legally compensable damage to its insured" and the insurer had no duty to act in good faith with respect to the punitive damages claim as it was beyond the scope of insurance coverage.
Therefore, once the insurance company proceeded to defend the uncovered claim, it was "under an obligation to act in good faith toward its insured to the entire extent of its undertaking.
If such a duty was owed or undertaken, it included apprising the client of settlement opportunities within a reasonable time after they were presented; it entailed the duty to warn the client of difficulties which the litigation posed for him wherever such difficulties were not included within the contract of indemnity; it included the duty to advise the client of the outcome of the litigation and of any particular procedures which might lessen its financial impact upon him; and it included the conduct of settlement negotiations in good faith to the interests of the insured wherever those interests might be divergent from the interests of the insurance company.
Insurer acted on counsel's advice in good faith -- The insurer's consultation with coverage counsel should be reasonable.
Competent Counsel -- An insurer must prove that it relied in good faith on the advice of competent counsel.
Courts will consider several factors, such as the reputation, experience and professional credentials of counsel, in determining whether an insurer acted in good faith in following the lawyer's advice.
When filing a bad faith action against an insurer for failure to settle, third-party claimants have attempted to invoke Section 4(9)(f) of the NAIC model statute, which defines an unfair insurance practice as "not attempting in good faith to effectuate a prompt, fair and equitable settlements of claims in which liability has become reasonably clear.
84) Courts, on the other hand, do not require insurers to obtain the consent of the insured where the settlement gives rise to retrospective premium collection from the insured, as long as the insurer has acted in good faith and with reasonable care.
Where the excess insurer is required to cover excess liability due to the primary insurer's breach of the duty to settle in good faith, policy rating structures are rendered uncertain, and coverage is made more expensive, the court said.