When responding to an insurance company’s motion for summary judgment, it is important to begin with your affirmative argument rather than simply denying the opposing argument. In an insurance bad faith case, it is also important to gather facts from statements and experts that show that an insurer acted unreasonably and biased. To defeat the genuine dispute doctrine evoked by an insurer, a Plaintiff need only prove that an insurer acted unreasonably. The courts no longer require evidence of bias; however, testing for bias is extremely useful in improving the affirmative argument. Many times, an insurer will argue that the Claimant violated the terms of the policy’s cooperation clause. If an insurer uses such a defense, it nullifies it by showing acts of compliance by the Plaintiff in the face of unreasonable delay or unreasonable investigation.
Consider setting up the move as follows:

ME. [Insurer] He acted unreasonably and with prejudice, failed to conduct a thorough investigation, ignored important evidence, and failed to weigh the plaintiff’s interests equally with his own.

Plaintiff cooperated with Defendant’s investigation until it became apparent that Defendant was conducting an unreasonable investigation. The defendant was required to act fairly and in good faith in fulfilling his contractual responsibility to the insured and could not unreasonably withhold payments due under the policy. “Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146 Cal.App.4th 831, 837.” Under this implied promise of good faith and fair dealing, in determining whether to settle a claim, the insurer must give at least as much consideration to the welfare of its insureds as to its own interests. “McCoy, 171 Cal. App. 4th 785, 794”.

In cases in which the breach of the implicit agreement of good faith and fair treatment is alleged, the “defendant insurer” is NOT entitled to a sentence as a matter of law when, seeing the facts from the most favorable point of view for the plaintiff , a jury could conclude that the insurer acted irrationally.” “McCoy, 171 Cal. App. 4th 785; Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713, 724 [68 Cal.Rptr.3d 746, 171 P.3d 1082].” Summary judgment is also inappropriate in bad faith insurance cases where an insurer acted with bias or where an insurer disregards evidence supporting coverage in handling a claim. “Chateau Chamberay Homeowners Assn. v. Intern. Associated. in s. Co., 90 cal. app. 4th 335 (Cal. App. 2d Dist. 2001); marshal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617, 1624 [50 Cal.Rptr.2d 224].”

An insurer’s bias can be demonstrated when
(1) the insurer was guilty of misrepresenting the nature of the investigative procedures;
(2) the insurer’s employees lied during depositions or to the insured;
(3) the insurer unfairly selected its experts;
(4) the insurer’s experts were unreasonable; Y
(5) the insurer did not conduct a thorough investigation.

“Chateau Chamberay Homeowners Assn, 90 Cal. App. 4th 335 confirmed by McCoy, 171 Cal. App. 4th 785.” Furthermore, “an insurance company cannot ignore evidence supporting coverage. If it does, it is acting unreasonably toward its policyholders and is in breach of the covenant of good faith and fair dealing.” “Marshal, 42 Cal.App.4th 1617, 1624”.

In this case, the Defendant not only handled Plaintiff’s insurance claim unreasonably, but, to an even greater extent, it also acted with bias, disregarded evidence supporting coverage in handling Plaintiff’s claim, and failed to weigh equally their own interests with those of the insured. . Therefore, judgment as a matter of law is improper.

Next, combine items with similar events to avoid repetition. Discuss the items with the strongest argument first:

A. Defendant did not conduct a thorough investigation and ignores evidence supporting coverage.

Does the defendant comply with insurance regulations and codes?
Did the insurer make efforts to resolve the inconsistencies in a reasonable time? Or at all?
Is the insurer quick to rely on expert opinion to confirm suspected late payment of a claim? Or does she wait months to hire an expert if needed?
Is the insurer quickly confirming its central theory by denying payment of a claim or delaying the claim process?
Is the insurer ignoring evidence or undermining important evidence? Does it fail to consider certain tests?

B. The defendant is guilty of misrepresenting the nature of its investigative procedures and fails to give at least as much consideration to the welfare of its policyholders as it does to its own interests.

Does the insurer give more weight to the evidence that supports its own position?
Does the insurer point to specific elements of the claim that fit a pattern to justify the delay in payment? And if so, do the facts of the lawsuit really fit this pattern?
Is the insurer building its case on misconceptions?
Does the insurer look for many small suspicions to justify the delay in payment? Do you ever test these suspects? Are the suspicions relevant to the claim?
In what other ways does the Defendant misrepresent the nature of its claim?

C. The Defendant’s Employees Lied During the Statements and to the Insured

D. Defendant dishonestly selected its experts.

How many times has the defendant relied on the same expert?
What kind of relationship does the adjuster have with the insurer?
What evidence does the expert consider?

In cases where the insurer alleges lack of cooperation:

II. Plaintiff cooperated with the investigation, but Defendant unreasonably delayed.

Plaintiff cooperated with Defendant’s investigation until it became apparent that Defendant was conducting its factual investigation in an unreasonable manner. The plaintiff provided adequate information and therefore the defendant was obligated to act fairly and in good faith. “Rappaport-Scott, 146 Cal.App.4th 831, 837”. The defendant was also bound by a duty to make a reasonable investigation of the facts and circumstances of the claim under “Section 790.03(h) of the California Insurance Code.”

Defendant cites “Globe Indemnity v. Superior Court” when alleging Plaintiff’s alleged lack of cooperation, however, Defendant is still obligated to make a reasonable investigation of the facts and circumstances of a claim. “McCoy, 171 Cal. App. 4th 785, 794”. In Globe Indemnity v. Superior Court, the court found that the petitioner’s delay in processing the claim was solely due to lack of information from the insureds. “Globe Indemnity Co. v. Superior Court (Guarnieri) (1992) 6 Cal.App.4th 725, 731.” This case is distinguished from the present one because Plaintiff cooperated with Defendant’s investigation despite Defendant’s unreasonable practices in investigating the claim; therefore, the rule produced in Globe Indemnity v. Superior Court is inapplicable because the delay in processing the lawsuit in this case was actually caused by the Defendant and not the Plaintiff:

Discuss facts that illustrate Plaintiff’s cooperation and unreasonable behavior by Defendants leading to unreasonable delay or processing of the claim.

The facts of each individual case may differ and creating headlines showing unreasonable behavior on the part of the Defendant is key to summarizing the opposing judgment motions here. Previous cases indicated that a Plaintiff must prove that an insurer acted with bias to win summary judgment. However, recent cases, as shown above, only require an insurer to act unreasonably. Evidence that an insurer is biased merely strengthens Plaintiff’s argument that summary judgment is improper. “McCoy, 171 Cal. App. 4th 785; Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 724 [68 Cal.Rptr.3d 746, 171 P.3d 1082]”

References:
1. “Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146 Cal.App.4th 831, 837.”
2. “McCoy, 171 Cal. App. 4th 785, 794.”
3. “Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 724 [68 Cal.Rptr.3d 746, 171 P.3d 1082].”
4. “Chateau Chamberay Homeowners Assn. v. Associated Internat. Ins. Co., 90 Cal. App. 4th 335 (Cal. App. 2d Dist. 2001)”
5. “Marshal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617, 1624 [50 Cal.Rptr.2d 224].”
6. “Globe Indemnity Co. v. Superior Court (Guarnieri) (1992) 6 Cal.App.4th 725, 731.”