Following a speech about claims ethics and claims practice lawsuits, one of the questions I get asked is whether the insurance company’s adjuster can be sued for bad faith. The answer is that it depends on the state law. But I often ask the question—“Why do you want to sue the individual adjuster when the adjuster is already an agent of the insurance company?”
Some policyholder attorneys will tell me they sue the in-state adjuster to avoid the conservative and insurance company-friendly federal court. I personally do not do this. There is a concept of fraudulent joinder just to prevent this practice. Texas has an elaborate statutory election just to prevent this type of conduct, as described in It’s a Brand-New Ballgame. . .In Texas When it Comes to Filing Suit Against Your Property Adjuster.
Some argue that by holding the individual accountable for wrongdoing, it helps prevent the bad conduct. This argument is valid.
In the vast majority of states, the adjustment of an insurance claim is a non-delegable duty. This means that whoever is appointed to adjust the loss has agency authority for the insurance company. If that adjuster acts in bad faith, the insurance company has acted in bad faith.
In a case decided last week, the Colorado Supreme Court held that insurance adjusters cannot be individually sued for violating Colorado’s “Unreasonable Conduct” statute.1 The question posed to the Colorado Supreme Court was:
Whether an employee of an insurance company who adjusts an insured’s claim in the course of employment may for that reason be liable personally for statutory bad faith under Colorado Revised Statutes Sections 10-3-1115 and -1116 (‘Statutes’).
The court answered as follows:
Given the plain statutory language, we answer that question in the negative. An action for unreasonably delayed or denied insurance benefits under Colorado law may be brought against an insurer, not against an individual adjuster acting solely as an employee of the insurer.
The insurance industry showed up en masse with six amicus parties successfully arguing against allowing the individual adjuster to be sued. The insurance industry would love the law to be that wrongdoing insurance companies can never be held accountable for their actions except for the payment of the contract.
Thought For The Day
You cannot escape the responsibility of tomorrow by evading it today.
—Abraham Lincoln
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1 Skillet v. Allstate Ins. Co., No. 21SA187, 2022 CO 12 (Colo. Mar. 14, 2022).
