I am in Kansas City litigating an alleged vexatious refusal to pay case against American Family Insurance Company. Did you know Kansas City is known as the City of Fountains? I thought that title was reserved for a favorite city of mine, Rome.
In the "Did You Know?" section of the City of Fountains Foundation, it states:
Like other great cities of the world, such as Paris and Rome, Kansas City is a city with many fountains-both public and private. More are being added all the time making it impossible to give an exact count.
Kansas City is not only a self-proclaimed great city of the world, it has great people and some fairly good bad faith law. For instance, the standard model jury instruction regarding bad faith provides:
If you find in favor of plaintiff on the claim on the insurance policy, and if you believe that defendant insurance company [refused to pay]1 [failed or refused to pay for a period of thirty days after demand]2 without reasonable cause or excuse, then, in addition to any amount you may award on the insurance policy under Instruction No. ___, you may award plaintiff an additional amount as a penalty not to exceed [twenty percent of the first $1,500.00 of the award on the policy not including interest and ten percent of the remainder of such award]3 and you may award plaintiff a reasonable sum for attorney’s fees.
The case law interpreting the claims practice penalties in Missouri is demonstrated in Tauvar v. American Family Mutual Insurance Company,1 which notes:
To show vexatious refusal to pay, pursuant to Section 375.296, the plaintiff must show: (1) the claimant made a demand; (2) the insurer failed or refused to pay for a period of thirty days after the demand; and (3) the refusal to pay was vexatious and without reasonable cause. A plaintiff who successfully shows vexatious refusal may be awarded, in addition to the amount due under the contract of insurance and interest thereon, damages and attorney fees….
‘To support the imposition of the statutory penalty, the insured must show that the insurer’s refusal to pay the loss was willful and without reasonable cause, as the facts would appear to a reasonable and prudent person before trial.’ Russell v. Farmers & Merchants Ins. Co., 834 S.W.2d 209, 221 (Mo.App.1992). That the insurer has suffered a judgment adverse to its contention is not a basis upon which to impose the statutory penalties…. Rather, the issue of whether a refusal was vexatious must be based on the ‘facts as presented at the time the insurer was asked to pay under the insurance policy.’ JAM Inc. v. Nautilus Ins. Co., 128 S.W.3d 879 (Mo.App.2004).
The jury may consider a number of circumstances in determining whether an insurer’s refusal to pay was vexatious, including the insurer’s explanation of why it refused the claim and the nature of the insurer’s investigation of the claim….’Examples of evidence of vexatiousness include a refusal to pay based on an inadequate investigation and a denial of liability without stating any ground for denial.’…The issue of whether an insurer’s reliance on the results of an investigation was reasonable is an issue for the jury….
An insurance company, in defending a claim for vexatious refusal, may introduce evidence of the facts and circumstances before it when the company denied liability, to show that the company acted in good faith and upon reasonable grounds to believe it did not have any liability under the policy. (some citations omitted)
So, when faced with an insurance claim in Kansas City, Missouri, be sure to visit with the friendly people, see the fountains, try the barbecue and mouth-watering Kansas City strip steaks, and for heaven’s sake–do not forget about your legal rights if your insurer delays or denies your claim.
1 Tauvar v. Am. Family Mut. Ins. Co., 269 S.W.3d 436, 439 (Mo. Ct. App. 2008).
