Tort law (2022): Economic torts: Insurance bad faith

Insurance bad faith is a tort unique to the law of the United States (but with parallels elsewhere, particularly Canada) that an insurance company commits by violating the "implied covenant of good faith and fair dealing" which automatically exists by operation of law in every insurance contract. In common law countries such as Australia and the UK, the issue is usually framed in the context of a failure of the duty of utmost good faith originating in English insurance law, which does not constitute a tort but rather provides the insured a contractual remedy unique to insurance law.

If an insurance company violates the implied covenant, the insured person (or "policyholder") may sue the company on a tort claim in addition to a standard breach of contract claim. The contract-tort distinction is significant because as a matter of public policy, punitive or exemplary damages are unavailable for contract claims, but are available for tort claims. In addition, consequential damages for breach of contract are traditionally subject to certain constraints not applicable to compensatory damages in tort actions. The result is that a plaintiff in an insurance bad faith case may be able to recover an amount larger than the original face value of the policy, if the insurance company's conduct was particularly egregious.

Historical background.

Most laws regulating the insurance industry in the United States are state-specific. In 1869, the Supreme Court of the United States held, in Paul v Virginia (1869), that the United States Congress did not have the authority to regulate insurance under its power to regulate commerce.

In the 1930s and 1940s, a number of U.S. Supreme Court decisions broadened the interpretation of the Commerce Clause in various ways, which led the U.S. Supreme Court to hold that federal jurisdiction over interstate commerce did extend to insurance in United States v South-Eastern Underwriters Association (1944). In March 1945, the United States Congress expressly reaffirmed its support for state-based insurance regulation by passing the McCarran–Ferguson Act which held that no law that Congress passed should be construed to invalidate, impair or supersede any law enacted by a state regarding insurance. As a result, nearly all regulation of insurance continues to take place at the state level.

Such regulation generally comes in two forms. First, each state has an "insurance code" or some similarly named statute which attempts to provide comprehensive regulation of the insurance industry and of insurance policies, a specialized type of contract. State insurance codes generally mandate specific procedural requirements for starting, financing, operating, and winding down insurance companies, and often require insurers to be overcapitalized (relative to other companies in the larger financial services sector) to ensure that they have enough funds to pay claims if the state is hit by multiple natural and man-made disasters at the same time. There is usually a department of insurance or division of insurance responsible for implementing the state insurance code and enforcing its provisions in administrative proceedings against insurers.

Second, judicial interpretation of insurance contracts in disputes between policyholders and insurers takes place in the context of the aforementioned insurance-specific statutes as well as general contract law; the latter still exists only in the form of judge-made case law in most states. A few states like California and Georgia have gone farther and attempted to codify all of their contract law (not just insurance law) into statutory law.