Indiana GRQ argues that the insurers deceived it by hiring its remediation consultant (Jeff Pope of Burns & McDonnell) to assist the insurers. Indiana GRQ calls this bad faith. Mr. Pope was hired as an environmental consultant for Indiana GRQ. He conducted testing at the site and produced an extensive report for Indiana GRQ. He produced an environmental remediation plan that Indiana GRQ signed. Mr. Pope testified that the insurers (through McLarens) retained him after his work for Indiana GRQ ceased and he stopped receiving payment.<\/p>\n\n\n\n

Mr. Thoman (the McLarens adjuster for the insurers) testified that the insurers hired Burns & McDonnell (namely, Mr. Pope) because \u2018they had an intimate knowledge of the complexity of what was happening on site\u2019 He also said he couldn\u2019t recall another claim where insurers hired the insured\u2019s previous consultant. Mr. Pope said he was retained for only one meeting. He participated in a call with the insurers \u2018to prepare [their] best estimates for the physical damage and seepage and pollution\u2019 and to discuss \u2018opening a potential settlement\u2019 with Indiana GRQ. Thomas Lovisa, the main vendor performing the site remediation, testified this was \u2018odd,\u2019 but it strikes as far more disturbing. \u2018Courts have been quick to find a confidential relationship in situations where the [consultant] previously worked for the opposing party,\u2019 particularly when that consultant acquires confidential information during the course of representation. Thompson, I.G., L.L.C. v. Edgetech I.G., Inc.<\/em>, 2012 U.S. Dist. LEXIS 126808, 9-11 (E.D. Mich. Sept. 6, 2012).<\/p>\n\n\n\n

On this record, a reasonable jury could find that hiring the very consultant who once worked for Indiana GRQ on this same issue of remediation now to undermine the company\u2019s efforts for additional remediation payments was in bad faith\u2014an exercise of an unfair advantage over the insured to pressure the insured toward a settlement. See id.<\/em>; Koch Refin. Co. v. Jennifer L. Boudreaux MV<\/em>, 85 F.3d 1178, 1181 (5^{th<\/sup> Cir. 1996) (flipflopping insurer and consultant provided basis for disqualification); Wang Lab\u2019ys., Inc. v. Toshiba Corp.<\/em>, 762 F. Supp. 1246, 1248 (E.D. Va. 1991) (viewing this flipflop retention of a proposed expert as \u201cclear\u201d case of concern)\u2026. The court thus must deny summary judgment on this bad faith theory.<\/p>\n<\/blockquote>\n\n\n\n}

During the trial and in response to a motion for directed verdict, the policyholder argued:<\/p>\n\n\n\n