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  1. #1
    Join Date
    Mar 2009
    Posts
    27

    Default Bad Faith Claim in Ca

    Is is possible to sue the IC (or the Employer, if they're self-insured) for bad faith in CA?

    Here's a recent discussion over in Legal Issues, but I'm wondering if CA has any specific laws...

    http://www.workerscompensationinsura...ad.php?t=38078

  2. #2
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Bad Faith Claim in Ca

    Depends. The first thing is, you are not the insured party...the ER purchases insurance to limit/mitigate their exposure for liability in a industrial injury.

    It is VERY difficult to prove you have suffered bad faith at the hands of the CA/IC....

    There are process in place for denials, delays, dispute resolution, and penalties, such as they are, for unreasonable delay in providing benefits.
    10106.5 Civil Penalty Investigation. http://www.dir.ca.gov/t8/10106.5.html
    Is is possible to sue the IC (or the Employer, if they're self-insured) for bad faith in CA?
    The simple answer is 'yes'... but there are a whole world of issues to address before you do.
    Here is a portion of the mandates...
    10109. Duty to Conduct Investigation; Duty of Good Faith.

    --------------------------------------------------------------------------------

    (a) To comply with the time requirements of the Labor Code and the Administrative Director's regulations, a claims administrator must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers' compensation benefit.

    (b) A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee.

    (1) The administrator may not restrict its investigation to preparing objections or defenses to a claim, but must fully and fairly gather the pertinent information, whether that information requires or excuses benefit payment. The investigation must supply the information needed to provide timely benefits and to document for audit the administrator's basis for its claims decisions. The claimant's burden of proof before the Appeal Board does not excuse the administrator's duty to investigate the claim.


    (2) The claims administrator may not restrict its investigation to the specific benefit claimed if the nature of the claim suggests that other benefits might also be due.


    (c) The duty to investigate requires further investigation if the claims administrator receives later information, not covered in an earlier investigation, which might affect benefits due.

    (d) The claims administrator must document in its claim file the investigatory acts undertaken and the information obtained as a result of the investigation. This documentation shall be retained in the claim file and available for audit review.

    (e) Insurers, self-insured employers and third-party administrators shall deal fairly and in good faith with all claimants, including lien claimants.
    10109. Duty to Conduct Investigation; Duty of Good Faith.

    http://www.dir.ca.gov/t8/10109.html.
    And, a bad faith claim would require an attorney... and up front retainer fees...very expensive proposition.

    What's your specific complaint...?
    There are also Audit Unit referrals, and UR complaint forms you can file to the DWC.

  3. #3
    Join Date
    Jun 2009
    Posts
    24

    Default Re: Bad Faith Claim in Ca

    yes, u can definitely sue for the IC for bad faith. its been done before, and some suites won and other lost. it is ur burden to prove though that the CA/IC acted in bad faith.

    most workers' comp attorneys by default are unwilling and hesitant take that route because bad faith cases are a challenge to prove and require quite some work. bad faith are pretty subjective and the more subjective an issue is, the harder it is to argue about it.

    u may seeking that avenue perhaps with a malpractice attorney so he/she can sue the IC for a tortuous action that put an IW in jeopardy. i'm not sure about upfront fees, but its possible to hire a none worker's comp attorney on a contingency basis and split the profit 50/50% to make it more enticing.

    ur not alone on this. millions of Californian IWs had and still put up with bad faith behavior and actions carried out by CAs. the reason being is that a CA gets a commission for every case he/she successfully denies or delays and if not a commission, then a nice bonus or a promotion.

    i went through what u went through too. i plan to contact the district attorney and the California attorney general to see if either one of them can take the IC to court based on a class action law suit. i think a public petition signed by IWs would more than persuade our good attorney general to consider this.

    this has been done before btw. in NY, the attorney general took an IC to court and had them fined 1.2million dollars for practicing bad faith.

    better yet, write to ur representative about this issue because ur representative has significant persuasion power with the attorney general

  4. #4
    Join Date
    Sep 2008
    Location
    New York State
    Posts
    147

    Default Re: Bad Faith Claim in Ca

    Quote Quoting Bob_Jacks View Post
    this has been done before btw. in NY, the attorney general took an IC to court and had them fined 1.2million dollars for practicing bad faith.
    Yes, a bad faith claim has recently been decided in a court of appeals (Bi-Economy Market Inc. v. Harleysville Insurance Company). But, as BvIA stated, most bad faith claims are extremely difficult to prove and are usually won under limited condition.

    As to how this could relate to an IW and WC, that is yet to be seen or determined as most bad fatih claims are between the insured party and the IC.

    One of the many important factors in a bad faith claim is to show the burden of proof that all avenues of resolution have been taken; no-fault arbitration.

  5. #5
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Bad Faith Claim in Ca

    This is from a conversation with an atty friend of mine, regarding your issues of 'bad faith' claims.

    the case that Hurt @ work is quoting is an INSURED CO going against their INS CO, NOT A IW.

    Additionally, the Harvard Law Review states,
    "Because the decision cannot be limited to bad faith in a conceptually consistent way, Bi-Economy should be understood as more broadly

    chipping away at the traditional contract law limitation on consequential damages."

    The case is essentially a CONTRACT ACTION where the court held that CONSEQUENTIAL damages were available in CONTRACT actions, where historically they have NEVER been available.

    Recall, there has been ONE CASE IN CA that awarded BAD FAITH dams against an INS CO and that was a man who was PARALYZED, in a WHEELCHAIR.

    There was also a woman awarded dams for EMOTIONAL DISTRESS for the PI hired by the IC that DATED HER, took her to Disney, shook the shit out of a rope bridge, and photographed her.
    i'm not sure about upfront fees, but its possible to hire a none worker's comp attorney on a contingency basis and split the profit 50/50% to make it more enticing.
    As a bad faith action is so difficult, as most agree, why would any atty take a case where the filing fees, depo costs....and just simply the overall cost of litigation is so expensive take such a case on a contingency ? No atty is going to front the costs of any case and work for nothing...possibly for years before a court date... and limited evidence as it amounts to 'he said/she said'.
    IF there were merit in these claims...the DA as in District Attorney would be more active in this area... as well as the claims of fraud by the ER/IC's

    ... a CA gets a commission for every case he/she successfully denies or delays and if not a commission, then a nice bonus or a promotion.
    There ya go with your WAG assumptions again... you have absolutely NO proof of your contentions.

    The bottom line is, you must prove the ER/IC is outside the statutes/CCRs' in the act you are claiming as 'bad faith'. As the rules, such as they are now, and shitty as they are to IW's, provide for delay, modification, denials to benefits in a claim....and a dispute resolution process... you are climbing Mt Everest in a bad faith action.

  6. #6
    Join Date
    Jun 2009
    Posts
    24

    Default Re: Bad Faith Claim in Ca

    first, by no way are u climbing mt. everest in a bad faith law suite, although bad faith suites are nontraditional and unconventional.

    it is obvious, that pessimism or lack of confidence may get in the way of perusing a legitimate bad faith claim. i hope that pessimism emitting from a misguided and biased person does not contaminat other IWs from going forward, as it certainly should not.

    i repeat to everyone else, don't let someone else's lack of confidence or whatever bias they have, paint a false and distorted image about bad faith claims.

    the argument bVia puts up sounds like something coming out of a CA's mouth in order to intimidate and stop a IW from pursuing a bad faith suite.

    next, contingency basis contracts are usually around a max of 35%, and 50% would be more than enough to entice a lawyer to go forward with a bad faith law suite.

    in addition, if a class action law suite is filed, the fees can turn into millions of dollars, as I've seen it happen before (i was involved in a class action law suite where attorney fees excluding compensation, penalties and interest, amounted to more than 1/2 million $.)

    district attorneys and attorney generals have in the past and still do pursue bad faith against insurance companies.

    last, it is a known fact that CAs definitely earn a commission, get a bonus or receive a promotion for at least denying case and more than likely, delying it. this is so evident, mainstream and full of common sense, that there isn't and will not be an statistics on this matter, simply because there absolutely is no need for it.

    the notion for statistic on such a known fact is quiet cynical.

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