Proving and Winning a First Party Bad Faith Case, Part 4 – The Nuts and Bolts of Discovery

In part 3 my series on Proving and Winning a First Party Bad Faith Case, I posted a Request for Production of Documents I recently served upon the insurer’s attorney on a case I am handling in federal court in the Western District of Missouri. In that case the insurer’s attorney requested information from my client in the insurer’s Requests for Production of Documents that would be needed to support my client’s allegations that the insured did not act reasonably and in good faith when adjusting my client’s claim. My client hired a public adjuster in that case who documented all of his communication with the insurer’s representatives as well as shared information with the insurer’s representatives in writing regarding the communications the policyholder and he had with contractors who evaluated the damage at policyholder’s property as well as building code representatives regarding building codes that must be complied with when replacing or repairing the damages incurred at the policyholder’s property.

The fact that the policyholder hired a public adjuster to assist in the adjustment of the claim has made presenting the policyholder’s case from a legal prospective much easier as the public adjuster documented every step he took in the adjustment process as well as documented every response the insurer made to his requests in the adjustment process showing the insured delayed payment of the claim and tried not to pay the claim fairly.

I served the following Requests for Admissions upon opposing counsel where United Fire and Casualty Company is the Defendant.

ADMIT THAT EACH OF THE FOLLOWING STATEMENTS OF FACT ARE TURE:

1. Admit that on August 31, 2007, UNITED issued property insurance policy No. xxxxxxxx to Plaintiff.

2. Admit that at all times material thereto all policy premiums were paid in full.

3. Admit that on February 29, 2012, the insured building sustained damages caused by a wind/tornado occurrence.

4. Admit that on February 29, 2012, the policy No. xxxxxxxxx was in full force and effect and all premiums were fully satisfied.

5. Admit that a wind/tornado occurrence is a covered peril under the Policy.

6. Admit that UNITED confirmed coverage for the tornado loss and issued payments for the claim.

7. Admit that UNITED retained Torgeson Design Partners to perform a structural damage assessment of the property.

8. Admit that UNITED retained TC3 to perform a repair cost estimate.

9. Admit that Torgerson Design Partners reported that repairs to the building would not be reasonable, safe or cost effective.

10. Admit that TC3 reported that structural repairs would cost over $6,000,000.00.

11. Admit that the building formerly located at xxxxxxxxxx, Branson, MO, could not have been repaired to its pre-loss condition.

12. Admit that it was necessary to demolish the building formerly located at xxxxxxxxx, Branson, MO.

13. Admit that on May 16, 2012, the insured submitted an executed Sworn Statement in Proof of Loss estimating the building’s repair or replacement cost at $7,282,859.99.

14. Admit that the Actual Cash Value of the building at the time of the loss was $5,947,452.96.

15. Admit that the amount of the loss to the building exceeded the $4,400,000.00 policy limit of the building coverage.

16. Admit that the amount owed to the insured for the building loss was $4,400,000.00.

17. Admit that the City of Branson is not a loss payee under policy No. xxxxxxx.

18. Admit that the City of Branson is not a mortgagee under policy No. xxxxxxx.

19. Admit that under policy No. xxxxxxx, UNITED has an obligation to protect a mortgage holder or loss payee, as their interest appear on the Declarations Page.

20. Admit that under policy No. xxxxxxx, Business Income is defined as the net income that would have been earned or incurred if no physical loss or damage had occurred, minus continuing, normal and operating expenses incurred, including payroll.

21. Admit that mortgage payments are considered normal operating expenses.

The above listed requests were the first twenty-one I sent. The reason many of these admissions were sent was to establish facts necessary to prove the client’s case, to obtain responses to facts that we know are true, and prepare for depositions of the insurer’s representatives who worked on the adjustment of this case, as well as their managers who supervised the adjustment process.