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WPI 320.01 Insurer's Failure to Act in Good Faith—Burden of Proof—General

6A WAPRAC WPI 320.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 320.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XV. Insurance Bad Faith
Chapter 320. Insurance Bad Faith Actions
WPI 320.01 Insurer's Failure to Act in Good Faith—Burden of Proof—General
(Name of plaintiff)has the burden of proving each of the following propositions:
(1) That(name of insurer)failed to act in good faith in one of the ways claimed by(name of plaintiff);
(2) That(name of plaintiff)was [injured] [damaged]; and
(3) That(name of insurer's)failure to act in good faith was a proximate cause of(name of plaintiff's)[injury] [damage].
If you find from your consideration of all of the evidence that each of these propositions has been proved, your verdict [on the claim of failure to act in good faith] should be for(name of plaintiff). On the other hand, if any of these propositions has not been proved, your verdict [on the claim of failure to act in good faith] should be for(name of insurer).
NOTE ON USE
This instruction should be used for most cases involving first-party claims and certain third-party claims that do not involve the duty to defend, settle, or indemnify. For those third-party claims that do involve the duty to defend, settle, or indemnify, use 320.01.01 (Insurer's Failure to Act in Good Faith—Burden of Proof—General—Third-Party Claims).
Use the bracketed language in the final paragraph if the bad faith claim is combined with other claims.
COMMENT
Background. This instruction is patterned after WPI 21.02 (Burden of Proof on the Issues—No Affirmative Defense) because these claims have been treated by the case law as if they were torts. See Besel v. Viking Ins. Co., 146 Wn.2d 730, 49 P.3d 887 (2002); Safeco Ins. Co. v. Butler, 118 Wn.2d 383, 823 P.2d 499 (1992). For a case discussing the duty of good faith in a context in which the insurer has not violated the duty to defend, settle, or indemnify, see St. Paul Fire & Marine Ins. Co., v. Onvia, Inc., 165 Wn.2d 122, 196 P.3d 664 (2008).
Terminology—Bad faith versus lack of good faith. Prior to 2004, the first element in this instruction required the plaintiff to prove the insurer “acted in bad faith” rather than “failed to act in good faith.” This terminology was consistent with much of the analysis found in the case law and in the treatises, which tends to discuss the issues in terms of an insurer's liability for bad faith rather than liability for failing to act in good faith. See, e.g., Tank v. State Farm, 105 Wn.2d 381, 385, 715 P.2d 1133 (1986); Harris, Washington Insurance Law, Chapter 7 (3d ed.); DeWolf & Allen, 16A Washington Practice, Tort Law & Practice, Chapter 28 (4th ed.).
The “bad faith” terminology, however, does not precisely state the plaintiff's actual burden of proof. The underlying duty for the insurer is to act in good faith. See RCW 48.01.030; WAC 284-30-300 et seq.; DeWolf & Allen, 16A Washington Practice at § 28:1. Consequently, the plaintiff's burden of proof is to show that the insurer failed to meet this duty, i.e., that the insurer failed to act in good faith.
Although judicial opinions often simplify this burden by using the term “acted in bad faith” rather than “failed to act in good faith,” the two requirements are not identical. Some acts can occupy a middle ground between good faith and bad faith. Appellate opinions discussing an insurer's bad faith implicitly recognize as much when they note that “[t]he duty to act in good faith or liability for acting in bad faith generally refers to the same obligation.” Van Noy v. State Farm Mut. Ins. Co., 142 Wn.2d 784, 793 n.2, 16 P.3d 574 (2001) (quoting Tank's language); Tank v. State Farm, 105 Wn.2d at 385. In sum, the term “bad faith” is more a short-hand description of the duty than a precise statement of it.
Because of the importance of accurately stating the burden of proof to the jurors, this pattern instruction, and the other instructions in this chapter, do not use the term “bad faith.” The term still appears in Comments within this chapter due to its short-hand ease of use.
[Current as of September 2018.]
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