Exposing and Defending Against Bad Faith: Strategic Tactics for Both Sides of the Insurance Fight

Charlotte Leszinske | Hunton Andrews Kurth LLP

Charlotte advises policyholders in complex insurance coverage matters. Charlotte represents policyholders in insurance coverage actions in federal and state courts across the country. Her work includes environmental liability, mass torts, products liability, cyber, D&O and bad faith. She regularly analyzes insurance policies and provides coverage advice and recommendations for clients at all stages of litigation. Charlotte also counsels clients in a variety of pre-litigation matters involving insurance coverage.

Prior to joining the firm, Charlotte served as a law clerk to the Honorable Lisa Hall Johnson of the District Court of Prince George’s County, Maryland. While in law school, Charlotte was a member of the Moot Court Honors Society and founded UCLA’s Vis Moot Organization, which competes at the William C. Vis International Commercial Arbitration Competition. She also served as a Hearing Examiner for the City of Los Angeles’ Department of Animal Services.

Kevin V. Small | Hunton Andrews Kurth LLP

Kevin is a commercial litigator focusing on insurance coverage disputes and counseling on behalf of policyholders. His educational background and prior experience as an insurance broker and advisor provide him with a deep understanding of the insurance industry, enhancing his ability to represent policyholders across a broad spectrum of policies. Kevin regularly represents clients in connection with claims under policies providing coverage for commercial property, cyber, builders’ risk, D&O, E&O, general liability, and representations and warranties. He also represents clients in professional liability matters, such as insurance broker malpractice.

Kevin frequently provides thought leadership on insurance issues. He writes extensively on insurance coverage, presents to industry professionals, and has been quoted in prominent publications. He is also a contributor to the Firm’s Insurance Recovery Blog.

While in law school, Kevin served as a judicial intern for the Honorable Cathy Waldor, USMJ, in the United States District Court for the District of New Jersey and as a legal intern in the United States Attorney’s Office for the District of New Jersey.

Before law school, Kevin studied Risk Management and Insurance at Temple University, which laid the foundation for his career in the insurance industry. He then worked for a leading risk management and insurance broking firm, where he advised Fortune 500 clients on structuring sophisticated risk management programs, brokered the insurance components, and serviced all risk management needs. This educational and professional background provides him with a deep understanding of the insurance industry, equipping him with unique insights and strategic advantages in handling complex coverage issues and disputes.

Joseph T. Niczky | Hunton Andrews Kurth LLP

Joseph’s practice focuses on complex insurance disputes, bad faith litigation, and advising policyholders on coverage issues. Joseph has extensive commercial litigation experience, including numerous insurance-related matters. Joseph represents commercial policyholders in matters stemming from all types of insurance policies, including commercial property, E&O, D&O, and reinsurance.

I. Introduction to bad faith litigation | 12:00pm – 12:20pm

• Origins of insurer bad faith liability
• Distinction between first-party and third-party claims
• Common law vs. statutory bad faith claims
• Typical scenarios leading to bad faith allegation

II. Insurer’s core duties in handling claims | 12:20pm – 12:40pm

• Duty to investigate claims promptly and thoroughly
• Duty to communicate openly with insureds
• Duty to settle within policy limits when liability is clear
• Duty to defend vs. duty to indemnify
• Good faith evaluation of coverage defenses

III. Recognizing and avoiding bad faith conduct | 12:40pm – 1:00pm

• Unreasonable claim denial or delay
• Misrepresentation of policy provisions
• Failure to conduct an adequate investigation
• Overly aggressive litigation tactics against insureds
• Practical strategies for insurers to demonstrate good faith

Break | 1:00pm – 1:10pm

IV. Attorney-client privilege and work product protection in bad faith cases | 1:10pm – 1:30pm

• Scope of attorney-client privilege in insurer-insured communications
• Limits of privilege: When legal advice overlaps with claims handling
• Work product doctrine and claim file production
• “At-issue” waiver of privilege in bad faith cases
• Judicial approaches to privilege disputes in different jurisdictions

V. Litigation strategies and discovery issues | 1:30pm – 1:50pm

• Production of claims files and internal communications
• Deposition of adjusters, experts, and corporate representatives
• Use of bad faith evidence to establish punitive damages
• Motions to compel vs. motions for protective orders
• Coordinating defense of underlying liability case and bad faith claim

VI. Recent developments and emerging trends | 1:50pm – 2:10pm

• Recent appellate decisions affecting bad faith claims
• Impact of technology and AI on claim handling and insurer duties
• Bad faith considerations in multi-party and mass tort contexts