WPI 320.01.01 Insurer's Failure to Act in Good Faith—Burden of Proof—General—Third-Party Cl...
6A WAPRAC WPI 320.01.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 320.01.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XV. Insurance Bad Faith
Chapter 320. Insurance Bad Faith Actions
WPI 320.01.01 Insurer's Failure to Act in Good Faith—Burden of Proof—General—Third-Party Claims
(Name of plaintiff)has the burden of proving that(name of insurer)failed to act in good faith in one of the ways claimed by(name of plaintiff).
If you find that(name of insurer)failed to act in good faith in one of the ways claimed by the plaintiff, then the law presumes that(name of plaintiff)was [injured] [harmed] [damaged] [prejudiced] and that the failure to act in good faith was a proximate cause of this [injury] [harm] [damage] [prejudice]. You are bound by that presumption unless you find that(name of plaintiff)was not [injured] [harmed] [damaged] [prejudiced] or that(name of insurer)was not a proximate cause of(name of plaintiff's)[injury] [harm] [damage] [prejudice]. (Name of insurer)bears the burden of proof that any failure to act in good faith did not [injure] [harm] [damage] [prejudice](name of plaintiff).
(Name of plaintiff)bears the burden of proving the amount of damages.
NOTE ON USE
This instruction should be used for most cases involving third-party claims of insurance bad faith associated with the underlying settlement or defense of an insured. Use WPI 320.01 (Insurer's Failure to Act in Good Faith—Burden of Proof—General) for third-party claims that do not involve a duty to defend, settle, or indemnify, and for first-party claims.
Use the bracketed language as appropriate. The instruction will need to be modified if the court has ruled as a matter of law that the insurer failed to act in good faith.
COMMENT
The second sentence of the second paragraph of this instruction has been revised for this edition so that the sentence is grammatically correct. No substantive change is intended.
Background. This instruction is patterned after WPI 21.02 (Burden of Proof on the Issues—No Affirmative Defense) and WPI 24.03 (Presumptions—Rebuttable Mandatory). Third-party claims have been treated by the case law as if they are torts. Any bad faith claim will carry a rebuttable presumption of harm and thus shift the burden of proof on causation once the insured shows the insurer acted in bad faith. See Mutual of Enumclaw Ins. Co v. Dan Paulson Constr., Inc.,161 Wn.2d 903, 169 P.3d 1 (2007); 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).
Terminology—Bad faith versus lack of good faith. See the Comment to WPI 320.01 (Insurer's Failure to Act in Good Faith—Burden of Proof—General).
[Current as of September 2018.]
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