Which is more important “case
law” – the formation of legal principle derived through the analysis of
specific circumstances and ruled on by a judge rendering an opinion – or “statutory law” which codifies what’s permissible and what isn’t?
Answer: When discussing the American legal system both are equally
important, as one set of laws and one set of case holdings interpret the other.
The importance of case law and
statutory law working in tandem is sometimes
clearest when dealing with instances of insurance bad faith. Insurance bad faith is a legal term of art
when insurance companies behave unreasonably and/or act in an unfair or arbitrary
manner after a claim is made.
One subset of unreasonable insurance company behavior concerns the
notion of “unfair competition” and is
codified in the California Business and Professional Code, section 17200 and is
known as the “Unfair Competition Law” or
UCL. According to the UCL which statutory
law promotes fair business practices in California, unfair competition
includes, “any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising.”
In case you think this definition
sounds rather broad, lacking specifics, you’re correct. It’s written intentionally as something of a
catchall. By including language like
unfair or fraudulent in addition to unlawful, means that business practices can
be deemed unfair and therefore
prohibited even if the actions taken weren’t breaking a specific law.
The UCL Scores a Case Law Boost
For many years, the insurance industry has viewed this expansive law
as not applicable to them in a bad faith case. Often
insurance companies have taken the position that B&P 17200 is already
covered by breach of contract and bad faith. Thus, insurers have argued, it
would be unfair for them to be accused of wrongdoing based on the redundant
claims in the UCL. Well they were wrong.
Historically, this has been the
defense on the part of insurance companies who felt their insureds were wrongly attacking the manner in which they conducted
their business.
But as Viau & Kwasniewski
noted in previous blogs, the robustness of our legal system rests on strength
through flexibility. No statutory law is absolute and no case law ruling is free from review or complete
reinterpretation.
In August 2013, in Zhang v. Superior Court, the Supreme
Court of the State of California clarified that policyholders who felt their
insurance company had acted in bad faith could file a claim under the UCL. This recent case before the court
concerned a plaintiff, represented by Viau & Kwasniewski, seeking insurance
company compensation following a fire at her Aprtment Complex and the insurance
company’s
alleged false advertising which promised timely and proper payment. In addition
to breach of contract and breach of implied covenant – the latter being the
belief that there is an implied covenant of good faith and fair dealing when an
insured enters into a an insurance contract expecting honesty, fairness and
good faith – the Court’s holding in Zhang v. Superior Court eliminated this insurance company defense,
marking a major victory for insurance claimants throughout the state.
So does this mean it’s case closed for insurance companies? Have
we seen the end of insurance bad faith?
No,
but now California insureds have another cause of action against those
insurance companies that habitually commit bad faith.
Tools of the Trade
In California insurance companies
have been stripped of the age old flawed argument that the UCL does not apply
to them regarding how they handle claims. However, the very nature of our legal
system, forever balancing case law holdings with statutory law, means that the debate as to what
constitutes insurance company misconduct and the arguments for and against its
existence will continue.
It is unlikely that insurance bad faith will be ever stop. But, just
because the “war” against insurance bad faith hasn’t been won, doesn’t mean lawyers and their clients can’t celebrate a victorious battle. It’ll be fascinating to see how the law post Zhang will develop.
What ever those future rulings may be, the
attorneys at Viau & Kwasniewski stand ready to assist. As always, feel free
to comment on this blog in the space below, email Viau & Kwasniewski at gkk@vklawyers.com
or jlv@vklawyers.com or contact us via phone at (800) 663-1095.
========================================================================
Business And Professions Code Section 17200 Violation
Cause of Action -
Should You Bother In A Bad Faith Case?
What does a cause of action based on Business and
Professions Code sections 17200, et seq. violations add to your breach
of contract and breach of implied covenant bad faith case?
The short and broadly stated answer is - an additional
predicate to establish the carrier’s “sharp” business practices and
misconduct. The Business and Professions
Code sections 17200, et seq. cause of action consequentially may: (a)
help you pursue pattern and practice discovery; (b) support your punitive
damages claim; and/or (c) bolster your request for attorneys’ fees, as
well. Through restitutionary relief, the
cause of action additionally permits the court to make such orders and
judgments as may be necessary to restore any money or property the insurance
company improperly acquires by means of the wrongful conduct, providing
latitude in terms of redress sought. See,
Bus. & Prof. C. § 17203.
Business and Professions Code Section 17200 - An
Overview
Business and Professions Code section 17200 states:
Ҥ 17200. Definition
“As
used in this chapter, unfair competition shall mean and include any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Chapter 1 (commencing with
Section 17500) of Part 3 of Division 7 of the Business and Professions Code.”
This law is commonly referred to as the Unfair
Competition Law (“UCL”). The courts
broadly construe what constitutes “unfair competition” under the UCL:
“The
statutory language referring to ‘any unlawful, unfair or fraudulent
practice’ makes clear that a practice may be deemed unfair even if not
specifically proscribed by some other law.
‘Because Business and Professions Code section 17200 is written in the
disjunctive, it establishes three varieties of unfair competition – acts or
practices which are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as ‘unfair’
or ‘deceptive’ even if not ‘unlawful’ and vice versa.’
‘[T]he
Legislature. . . intended by this sweeping language to permit tribunals to
enjoin on-going wrongful business conduct in whatever context such activity
might occur. Indeed, . . . the section
was intentionally framed in its broad, sweeping language, precisely to enable
judicial tribunals to deal with the innumerable new schemes which the fertility
of man’s invention would contrive.’ (American Philatelic Soc. v. Claibourne
(1953) 3 Cal.2d 689, 698.) As the Claibourne
court observed: ‘When a scheme is evolved which on its face violates the
fundamental rules of honesty and fair dealing, a court of equity is not
impotent to frustrate its consummation because the scheme is an original one.’.
. . ‘[I]t would be impossible to draft in advance detailed plans and specifications
of all acts and conduct to be prohibited since unfair or fraudulent business
practices may run the gamut of human ingenuity and chicanery.’” (Emphasis in
original.)
See, Cel-Tech
Communications, Inc. v. L.A. Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 -181, 83 Cal.Rptr.2d 548,
561; Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th
553, 573 - 574, 71 Cal.Rptr.2d 731, 744 - 745.
When the people of the State of California passed
Proposition 103, three important sections were added to the California
Insurance Code. One of these, section
1861.03(a), expressly provides that the business of insurance shall be subject
to the unfair business practices laws, set forth pursuant to Business and Professions
Code sections 17200, et seq.
Insurance Code section 1861.03(a) states:
Ҥ
1861.03. Unfair insurance practices;
prohibition
(a) The business of insurance shall
be subject to the laws of California applicable to any other business,
including, but not limited to. . . the. . . unfair business practices laws
(Parts 2 commencing with Section 16600). . . of the Business and Professions
Code.” (Emphasis added.)
Sections 17200, et seq. are included in Part 2 of
the Business and Professions Code expressly referred to in section 1861.03. Pursuant to the express mandates of this
state’s Legislature, the business of insurance is specifically subject to the
provisions of sections 17200, et seq.
How To Fight Carrier Challenges To The UCL Cause Of
Action
Insurance companies typically predicate their challenges
to the UCL on certain basic principles: (a) that the 17200 cause of action is
an attempt to plead around the proscriptions in Moradi-Shalal v. Fireman’s Fund Ins. Co. (1988) 46 Cal.3d 287, 250 Cal. Rptr. 116; (b) that the cause of action is superceded
by or duplicative of the breach of contract and
breach of implied covenant
theories and damages; and/or (c) the insured has no right to any recovery under the UCL.
The first rebuttal to such carrier challenges is, of
course, a discussion of Insurance Code section 1861.03, quoted above.
The following also provides additional arguments to
defeat the carriers’ contentions - and further underscores why the UCL cause of
action is worth the trouble:
(a) The UCL
cause of action is not barred by Moradi-Shalal:
In Moradi-Shalal, the California Supreme Court
overruled Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880,
153 Cal.Rptr. 842. Royal Globe
held that private litigants could bring an action pursuant to Insurance Code
section 790.03 against insurance companies, regardless of whether the action
was brought by the insured (i.e., first party), or by a person making a
claim against the insured (i.e., third party).
What Moradi-Shalal broadly stands for are the
propositions that: (a) third parties cannot bring direct actions
(including section 17200 actions) against insurance companies; and (b) there is
no private right of action, at all (i.e., by first or third parties),
for alleged violations of the Unfair Insurance Practices Act set forth at
Insurance Code section 790.03.
What Moradi-Shalal does not stand
for is the proposition that first party individual plaintiffs cannot bring UCL
claims against insurance companies.
Nevertheless, many carrier defendants (improperly) cite Moradi-Shalal
in support of that postulate.
Carriers further argue that where the only facts
supporting the UCL cause of action constitute misconduct proscribed by
Insurance Code section 790.03(h), the insured’s Business and Professions Code
section 17200 cause of action is nothing more than an attempt to plead a direct
claim based on Insurance Code section 790.03 violations - which Moradi-Shalal
prohibits.
That carrier argument also is erroneous:
First, even in cases apparently predicated solely upon
claims handling misconduct, the courts have allowed the UCL cause of
action. These courts did not find that
the UCL theory contravened Moradi-Shalal.
For example:
In Gallimore v. State Farm Fire & Cas. Ins. Co.
(2002) 102 Cal.App.4th 1388, 1391, 126 Cal.Rptr.2d 560, 562, the Second
District Court of Appeal held that a cause of action predicated upon Business
and Professions Code sections 17200, et seq. is valid even where it is
based on allegations of improper claims handling and adjustment. The Court of Appeal reversed the trial court’s
Order granting defendant State Farm’s motion to strike. Carrier defendants seek to distinguish Gallimore
arguing that the case did not involve claims handling practices. However, even the Court in Dible v. Haight
Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 851, 88 Cal.Rptr.3d
464, 471 recognized that the plaintiff/insured in Gallimore brought an
action under the UCL “seeking to enjoin improper handling of claims. . . .”
Similarly, the Second District Court of Appeal in Kapsimallis
v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 676 - 677, 128 Cal.Rptr.2d
358, 365, reversed the trial court’s granting of the insurance carrier’s motion
for judgment on the pleadings as to breach of contract, bad faith, and
Business and Professions Code section 17200 violations. The Court held that the pleadings properly
alleged claims mishandling based upon the carrier’s denial of coverage for the
insureds’ Northridge earthquake claims in bad faith.
Second, a UCL violation does not require violation of a
predicate law (790.03 or otherwise):
An act or practice may constitute “unfair competition”
under 17200 if it is forbidden by law - or even if not
specifically prohibited by law, it is deemed an “unfair” act or practice. Hence, Insurance Code section 790.03 is not
and need not be a predicate for an insured’s UCL cause of action. The insured’s Complaint allegations may
include unfair, unlawful, and fraudulent conduct the carrier committed that is not
delineated or described in Insurance Code section 790.03. Some insurance company misconduct becomes so
personal, harassing, and discriminatory - and causes extensive harm far beyond
and unrelated to claims handling issues, that the predicate acts are not
limited to the proscriptions set forth in Insurance Code section 790.03. Because “unfair” acts not set forth in
section 790.03 may be alleged as supportive of an insured’s Business
and Professions Code claim, Moradi-Shalal is not undermined by, and has
no application to, the analysis demonstrating the validity of the insured’s UCL
theories against the carrier defendant.
In enacting the UCL itself, and not by virtue of
particular predicate statutes, the Legislature conferred upon private
plaintiffs “specific power” to prosecute unfair competition claims.
Thus, for example, in Progressive West Ins. Co. v.
Superior Court (2005) 135 Cal.App.4th 263, 283, 37 Cal.Rptr.3d 434, 450,
the Court of Appeal found that the plaintiff/insured properly alleged a UCL
theory based on the insurance company’s “sharp, illicit business practice.” The Court articulated the insured’s theory as
follows:
“Preciado
[insured] alleges that Progressive has a ‘pattern and practice of ignoring
California Law by seeking 100% reimbursement for the amounts paid under its
med-pay provision. This systematic
scheme is contrary to law, and is nothing more than a sharp, illicit business
practice.’ Based on these key
allegations, Preciado alleges Progressive fails to investigate claims, fails to
properly explain policy benefits, misled Preciado and misrepresented material
facts pertaining to his claim, imposes unacceptably high reimbursement amounts,
and forced Preciado to retain an attorney and incur economic damages in order
to receive proper benefits under the policy.
These
practices, to the extent they are more general than the allegations of the
breach of contract and breach of the covenant of good faith and fair dealing
causes of action, state a cause of action. . . .”
Insurance Code section 790.03 was not and did not need to
be the predicate for the plaintiff’s/insured’s UCL cause of action in Progressive
West, and the Court found the theory valid.
Third, Regulations violations may support the UCL
allegations:
The plaintiff’s/insured’s pleading may allege that the
carrier defendant violated numerous Regulations, set forth at the Fair Claims
Settlement Practices Regulations, Title 10, Chapter 5, subchapter 7.5, sections
2695.1, et seq. In other words,
the UCL claim does not require section 790.03 violations, and again, the UCL
theory does not constitute the insured’s attempt to “plead around” Moradi-Shalal.
As the Court stated in Stevens v. Superior Court (1999) 75 Cal.App.4th
594, 606, 89 Cal.Rptr. 370, 378:
“A
regulatory statute may form the basis for such a UCA1 [Business and
Professions Code section 17200] action.
The Supreme Court has long held that the ‘unlawful’ practices which form
the basis of a UCA action are ‘. . . any practices forbidden by law, be
it civil or criminal, federal state, or municipal, statutory, regulatory,
or court-made. . .
“It
is not necessary that the predicate law provide for private civil enforcement.” (Emphases in original.)
Stevens v. Superior Court,
id., citing to Saunders v.
Superior Court (1994) 27 Cal.App.4th 832, 838 - 839, 33 Cal.Rptr.2d 438,
441.
Fourth, the insured’s Complaint may include allegations
that the insurance company engaged in misleading advertisements within the
meaning of the UCL, which is separate and distinct from the claim mishandling
allegations (and, therefore, not proscribed by Moradi-Shalal at
all).
For example, many insurance companies advertise that “they
are on your side,” that the insured “is in good hands,” or that they are “like
a good neighbor.” These slogans may
influence the consuming public’s decision to purchase the respective carrier’s
insurance product. However, the
misconduct at issue in your client’s/the insured’s case may demonstrate that
the insurance company had no intention whatsoever of fulfilling the advertising
promises made. A UCL cause of action
under such circumstances is valid.
In Progressive West Ins. Co. v. Superior Court, supra,
135 Cal.App.4th at 284 - 285, 37 Cal.Rptr.3d at 451 - 452, the Court analyzed
the UCL’s fraudulent business practices proscription, and concluded that the
insured’s UCL cause of action was valid in light of its allegations that other
purchasers of Progressive policies were likely to be deceived or misled
regarding the carrier’s insurance products:
“A
fraudulent business practice under section 17200 ‘is not based upon proof of
the common law tort of deceit or deception, but is instead premised on whether
the public is likely to be deceived.’ (Pastoria
v. Nationwide Ins., supra, 112 Cal.App.4th at p. 1498.) Stated another way, ‘In order to state a
cause of action under the fraud prong of (section 17200) a plaintiff need not
show that he or others were actually deceived or confused by the conduct or
business practice in question. A
violation can be shown even if no one was actually deceived, relied upon the
fraudulent practice, or sustained any damage.
Instead, it is only necessary to show that members of the public are
likely to be deceived.’ (Schnall v.
Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167 - 1168.) . . . .”
Based upon the insured’s allegations of Progressive’s
pattern and practice of deceiving
consumers purchasing its insurance products, the Court concluded that
the carrier’s “conduct is likely to deceive the public. . . .” As such, the Court concluded that the insured
stated a valid UCL cause of action. Id.
Further, the test in these circumstances is whether a
reasonable consumer would likely be misled by the advertising promises
made. See, Lavie v. Procter &
Gamble Co. (2003) 105 Cal.App.4th 496, 506 - 507, 129 Cal.Rptr.2d 486, 494;
Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 54,
77 Cal.Rptr.2d 709, 726.
(b) The UCL
cause of action is not is superceded by or duplicative of the breach of
contract and breach of implied covenant theories:
Carrier defendants argue that the plaintiff/insured has
an “adequate remedy” pursuant to the causes of action for breach of the
insurance contract and breach of the implied covenant. Therefore, they posit, the UCL cause of
action is invalid.
Business and Professions Code section 17205 expressly
provides that the remedies afforded pursuant to section 17200 are “cumulative.
. . to the remedies or penalties available under all other laws of this state.”
The statute states:
“Unless
otherwise expressly provided, the remedies or penalties provided
by this chapter are cumulative to each other and to the remedies
or penalties available under all other laws of this state.” (Emphases added.)
See, Bus. & Prof. C. §17205. (Case law supports the cumulative nature of
the remedies: See, Donabedian v.
Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 11 Cal.Rptr.3d 45;
Rothschild v. Tyco Int’l, Inc. (2000) 83 Cal.App.4th 488, 99 Cal.Rptr.2d
721; Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952; 93
Cal.Rptr.2d 413; Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th
911, 83 Cal.Rptr.2d 89; Stop Youth Addiction, Inc. v. Lucky Stores, Inc.
(1998) 17 Cal.4th 553, 71 Cal.Rptr.2d 731.)
Pursuant to the statute itself, unless specifically
proscribed, the statute’s remedies are
“cumulative.” The insured’s breach of contract and breach
of implied covenant causes of action do not supercede and are not duplicative
of the UCL theory.
(c) There is a right to recovery under a UCL
cause of action:
The courts recognize the validity of restitutionary
equitable relief in a UCL cause of action.
The Court in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29
Cal.4th 1134, 1144 - 1145, 131 Cal.Rptr.2d 29, 37 - 38 stated:
“We
defined in Kraus v. Trinity Mgt. Services, Inc. an order for ‘restitution’
as one ‘compelling a UCL defendant to return money obtained through an unfair
business practice to those persons in interest from whom the property was
taken, that is, to persons who had an ownership interest in the property or
those claiming through that person. . . .’”
The
California Supreme Court in Korea Supply goes on to clarify that: (a.)
where the disgorgement sought is restitutionary in nature, it is allowed in a
17200 action (indeed, it is the primary remedy allowed); (b.) this remedy
applies in both individual and representative actions; and (c.) the UCL action
provides a broad statutory remedy that is an important consumer tool:
“We
note that the UCL remains a meaningful consumer protection tool. The breadth of standing under this act allows
any consumer to combat unfair competition by seeking an injunction against
unfair business practices. Actual direct
victims of unfair competition may obtain restitution as well.”
See, Korea Supply Co. v.
Lockheed Martin Corp., supra, 29
Cal.4th at 1152, 131 Cal.Rptr.2d at 44.
Hence, where the insurance company violates the UCL, and
refuses to abide by the promises made in the insurance contract, an example of
restitutionary relief afforded is return of the insurance policy premium. Such relief is particularly advantageous
where the policy premium is high.
Moreover, the California Supreme Court holds that where
aggrieved parties are harmed by the unfair business practices of a defendant,
they may be entitled under certain circumstances to attorneys’ fees pursuant to
Business and Professions Code sections 17200, and Code of Civil Procedure
section 1021.5. See, Graham v.
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 21 Cal.Rptr.3d 371 (questioned
on other grounds in Doran v. Vicorp Restaurants, Inc. (C.D. Cal. 2005)
407 F.Supp.2d 1120, 1122 - 1123).
The California courts, and the Legislature, expressly
recognize the importance of the fee award aspect to a UCL claim. Pursuant to Code of Civil Procedure section
1021.5, fees are awarded to the party prevailing under a UCL claim, and states
in part:
“Upon
motion, a court may award attorneys’ fees to a successful party against one or
more opposing parties in any action which has resulted in the important right
affecting the public interest if: (a) a significant benefit, whether pecuniary
or nonpecuniary, has been conferred on the general public or a large class of
persons. . . .”
Rectifying a pattern and practice of improper claims
handling, or misleading advertising promises, may constitute just such a “significant
benefit.” As such, an insurance company
defendant’s attempt to take away the aggrieved plaintiff’s/insured’s right to
the possibility of attorneys’ fees, particularly at the pleading stage, is improperly
premature.
Why Pursue A UCL Theory?
The discussion above regarding an insured’s right to
recovery under a UCL theory illuminates the utility in alleging this cause of
action. Further, evidence of UCL
violations paints the insurance company defendant with another “unreasonable
carrier” brush stroke. In addition, on a
more nuts and bolts level, a UCL theory may bolster a plaintiff’s/insured’s
argument that pattern and practice discovery is relevant in the case.
Discovery in a bad faith case should seek to reveal such
pattern and practice conduct. It is the
law of the State of California that an insurance company may not engage in a
pattern and practice of wrongful claims handling. How an insurance company handles similar
claims is of the utmost importance:
Where the insurance company engages in a conscious and willful pattern
and practice of wrongful denial, wrongful delay, purposeful refusal to
objectively investigate, and/or discrimination, the insurer is exposed to
tortious breach and punitive damages.
The manner in which insureds may obtain this discovery
was analyzed in the case of Colonial Life & Acc. Ins. Co. v. Superior
Court (1982) 31 Cal.3d 785, 183 Cal.Rptr. 810. This discovery relates to the insurance
company’s handling of other similar claims made by other insureds. The California Supreme Court, and the courts
in uniform decisions since 1982, specifically hold that such discovery is
relevant, is not privileged or protected, and that if it proceeds as outlined
in Colonial Life, properly protects the other insureds’ privacy
interests.
A UCL theory adds another basis on which a
plaintiff/insured may properly argue that the pattern and practice discovery is
pertinent to the action.
Lincoln said “labor is the true standard of value.” Does pleading a UCL cause of action create
work? Yes. Is it worth it? We hope this article reveals that it is. (Plus, carriers hate it. Enough said.)