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In insurance “bad faith” cases, the main issue is typically whether the insurer, in addressing the claim of its insured, acted reasonably and in good faith, or whether its conduct was unreasonable and in “bad faith.”  In order to address these issues, courts sometimes allow testimony from so-called “bad faith” experts to address insurer practices and industry standards.  The Tenth Circuit, and Oklahoma federal courts, have been reluctant to allow such expert evidence, as was recently found in Higgins v. State Farm Property & Casualty Insurance Co., 2012 WL 2369007 (N.D. Okla. June 21, 2012).  In Higgins, the court rejected testimony from experts by both parties as to claims handling standards and bad faith.  Higgins involved an insurer’s denial of uninsured motorist benefits relating to a motor vehicle accident of its insured.  The plaintiff in Higgins sponsored a practicing attorney who had many years of experience litigating insurance claims as a “bad faith” expert on proper claims practices.  The insurer sponsored a long-time claims adjuster who had worked for another property-casualty insurer.  Both parties moved to exclude the other’s expert.

The court first addressed the plaintiff’s expert, noting that portions of the expert’s proffered testimony consisted of his “intricate, comprehensive, and opinionated view of Oklahoma insurance law.”  The court further noted that the expert’s report included “extensive, and often argumentative, citations to Oklahoma law that support [his] opinions. . .”  The court found that while the report might assist the court in its “legal analysis,” allowing this evidence to be heard by the jury “would be both unhelpful and inappropriate, as any such presentation would likely lead to confusion and would ultimately subvert the role of the Court as the sole judge of the law applicable to a given case.”  The court in Higgins also found, “similarly unhelpful are [the expert’s proffered] opinions as to industry standards and his detailing the multiple ways in which the Defendant allegedly breached the duty of good faith and fair dealing in relation to those standards. . . [The expert’s] opinion on whether or not Defendant breached its duty is at best superfluous, and at worst, would serve to confuse the issues of this already complicated case.  In addition to being unhelpful, [the expert’s] opinion purports to answer the ultimate issue of fact in this case, impermissibly invading the fact-finding provinces of the jury.”

Thus, the court found, “the whole of [the expert’s] testimony is not relevant because it fails to assist the trier of fact in understanding any fact in issue and it further impermissibly invades the Court’s role in instructing the jury as to the applicable law and the jury’s role in applying that law to the facts at hand.”  After rejecting the plaintiff’s proposed expert, the court similarly found that the insurer’s rebuttal expert, who opined that the conduct of the insurer was “reasonable,” suffered from the same deficiencies, and was likewise inadmissible.

The court’s bottom line was that a properly instructed jury would be fully capable of assessing issues as to whether the insurer acted reasonably and in good faith, or unreasonably and in bad faith, without the assistance an expert.  This is not to say that there are no circumstances where it could be helpful to identify an expert to testify in an insurance matter.  There may be circumstances that would necessitate an expert’s opinion about specific insurance-related issues.