Establishing delay, in both the claims and litigation phase, under this theory was discussed by Nelson Waneka in the firm’s recent webinar on the case:
“In Fisher, the medical payments that State Farm refused to pay were undisputed. In practice, the question becomes, how do you get that established aside from an admission? Brad Levin and I think it starts in the claims stage.
“We think it’s important to get the insurance company to take a position. It’s just our opinion, but we think it’s a good one, that insurance companies must face their statutory duties under 10-4-609 as well as their duties under the policy to ascertain and pay benefits as well as their duty to investigate. We think they have an obligation to determine what the damages are, and that doesn’t just mean general damages. That’s something we see a lot of now. In the UIM claim, you present your claim, your bills and other evidence. Then the insurance company comes back and says, ‘Oh, well, we found $50,000 in general damages.’ What does that mean? Can an insurance company in order to get around Fisher just create a bucket of numbers, say, $50,000? What we do is try to get them to take a position during the claims stage with letters saying, it’s your obligation to tell me, to determine what my damages are, not just general damages but each category of them. And then we try to find where the dispute is and where it isn’t.
“It doesn’t really matter in our mind what the insurance company does. If they refuse to tell you what your damages are or break it down into categories, we think that then goes into the bad faith theory which is: Why are you not telling your own insurer what their damages are? If they do take a position, I think it is all the more easy to establish that something was not disputed or was disputed.
“So it starts in the claims stage.
“The next stage would be during litigation using written discovery and ideally after that a 30(b)(6) depositions to lock down their position on damages. We notice our 30(b)(6) depositions with each category of damages and what items were disputed or not disputed. We then go in there with each bill or item of evidence and ask – did you dispute this? If you did, why? This makes it easier to really establish for purposes of this theory of liability what was disputed and what wasn’t, and if the insurance company trying to ignore undisputable damages in the hope of just resolving the claim on a global basis. We think that’s the big import of Fisher.”