The Bradfield court came to the conclusion that the Coblentz agreement was not made in good faith
because, inter alia, the insured builders never made any settlement counteroffers to the homeowners, no allocation between covered and uncovered damages was attempted, and the settlement was clearly drafted to bring it within the insurance coverage provided by the policy.
The obligation to seek to settle insurance claims in good faith
should be a two-way street.
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." The court's opinion, however, provided no discussion as to why the insurer's good faith duty should be extended, nor did it critically examine any public policy considerations that might be implicated by its holding.
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.
Perhaps the most difficult of these to satisfy is the obligation to conduct settlement negotiations in good faith by taking into account the interests of the insured.
Insurer sought counsel's advice in good faith -- The insurer must initially seek the assistance of an attorney for the sole purpose of being advised as to the law.
In the latter situation, an insurer would likely not be found to have acted in good faith relying on advice from counsel who the insurer knew was not competent to give such advice.
DR Insurance Co., the federal district court described the standard of review as a "court need only address whether an insured's request for payment from its reinsurer is made in good faith
, is arguably within its policy, and does not exceed the reinsurer's liability cap."(12) The Third Circuit described the standard as a "deferential review of a determination of the insurer's liability to the insured."(13)
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." Third-party claimants may want to assert a bad faith statutory cause of action to impress on the jury that the insurer not only broke an implied promise in the insurance policy, but also violated the law.
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.