Bad Faith Charges Don’t Eliminate The Burden of Proof
Because most people dislike insurance companies and believe just filing suit against an insurer seeking bad faith damages is enough to win major damages. Those people are wrong. Every plaintiff, even one suing an insurance company for the tort of bad faith, has the burden of proof.
When a party files a motion for summary judgment the opposing party is obligated to present evidence that is sufficient to raise an issue of fact. Failure to do so is fatal to the suit.
In Bailey v. State Farm Fire and Casualty Company, Slip Copy, 2015 WL 7069415 (S.D.W.Va., 11-12-2015) the Plaintiffs, Justin and Robyn Bailey, sued State Farm asserting that their home and property were insured under a policy purchased from State Farm when they suffered losses caused by a derecho wind storm.
State Farm filed a motion for summary judgment. The plaintiffs sought more time after delaying responses to discovery and failing to respond to interrogatories or appear for depositions up to an including the discovery cut offs. Plaintiffs claimed that caring for an ill parent was sufficient to avoid the need to respond.
Extension of Time
The Baileys responded to State Farm’s motion for summary judgment with a request for an extension of the deadlines contained in the Court’s scheduling order. They explain that Ms. Bailey’s father “has been extremely ill undergoing medical procedures for suspected lung mass with possible metastasis.” They assert that Ms. Bailey’s father’s medical appointments, care, and treatment have left them unavailable to their own counsel, as well as for depositions. In light of their circumstances, they seek entry of a new scheduling order that permits completion of discovery and the taking of depositions.
State Farm opposed the requested extension. It notes the history of failure to respond to discovery requests (and failure to respond to the motion to compel), as well as the repeated attempts to schedule depositions over the course of several months.
The Court found that an extension of the deadlines at this point in the litigation is not appropriate. First, while the Plaintiffs have explained that their time and attention is devoted to Ms. Bailey’s father’s medical care, they have not provided evidence that the care interfered with their ability to conform to the Court’s deadlines. It is not clear to the Court that the family medical issue prevented the Plaintiffs from answering interrogatories or scheduling at least one of the Plaintiffs for a deposition at a time and location convenient to the Plaintiffs.
Parties have an obligation to both the Court and the opposing party to either comply with the deadlines or seek extensions in a timely manner. The Plaintiffs simply ignored their obligations in this case. The Court concluded that no extension of the long-expired discovery deadlines contained in the scheduling order to be warranted.
Because the Plaintiffs have the burden of proof, and can no longer rest on their pleadings, State Farm argues that it is entitled to summary judgment as to the breach of contract claim, and consequently as to the claims for damages, bad faith, and punitive damages.
The Court agreed that State Farm has satisfied its burden of demonstrating that it is entitled to judgment as a matter of law. The burden on the moving party may be discharged by ‘showing’ there is an absence of evidence to support the nonmoving party’s case.
Plaintiffs bear the burden of proof with respect to claims for breach of contract. They, therefore, have the burden, when challenged at the summary judgment stage, of making a sufficient showing on each essential element of their case. Because the Plaintiffs have presented no evidence to support their allegations, State Farm is entitled to summary judgment.
Insurers are not evil. Plaintiffs, who may have a viable suit against an insurance company, cannot ignore their obligation to the court and the legal system to provide legitimate and honest response to discovery requests and fail to respond to a motion for summary judgment. This case is like the plaintiffs failing to show up for trial because it is inconvenient.
Barry Zalma, Esq., CFE, practiced law in California for more than 43 years as an insurance coverage and claims handling lawyer. He now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes.
He founded Zalma Insurance Consultants in 2001 and serves as its only consultant.
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