Deposition Outline: Good Faith Reliance on Counsel

 Attorney-Client Relationship

Did you seek legal advice of any kind regarding plaintiff’s claim?

Identify the attorney.

Did you have an attorney-client relationship with this lawyer?

Did you receive legal advice regarding plaintiff’s claim from your attorney?

What qualifications did your attorney have to give you advice regarding the plaintiff’s claim?

Describe your history with this attorney including all personal interests the attorney had to give an evaluation favorable to the insurer.

Claim Standards

California Insurance Code §790.03(h) requires insurers “to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.”

When you denied the plaintiff’s claim, were you aware of this requirement?

Did you adopt and implement standards for the prompt investigation and processing of claims?

What are those standards?

How were those standards communicated to the people who handled the plaintiff’s claim?

Did your standards guide you to a decision to deny the plaintiff’s claim? How?

Investigation

What facts did you disclose to your attorney?

Did you withhold any facts from your attorney?

Did your attorney conduct an investigation of the facts?

What did your attorney discovery that you did not?

Advice

Did you receive legal advice from your attorney regarding plaintiff’s claim?

Did your attorney advise you whether the claim was covered?

What is the substance of the advice you received from your attorney?

Do any writings exist expressing the advice you received from your attorney?

Describe all such documents?

Was any of the advice you received from your attorney based on facts you did not previously know? (If yes) Why had you not previously investigate those facts? (If no) Are all facts upon which you decided to deny the plaintiff’s claim documented in the claims file?

Was any of the advice you received from your attorney based on law that you did not previously know? (If yes) Why had you not previously that law? (If no)

Did all of the advice you received from your attorney differ from your claims handling standards? (If yes) Have you changed your standards as a result of the advice you received from your attorney? (If no) Why do your claims handling standards fail to address the plaintiff’s claim?

Did your attorney’s advice consider the interests of the policyholder equally with the interests of the insurance company?

Did you receive this advice before or after denying plaintiff’s claim?

If before –

After receiving that legal advice, did you then deny this claim?

How did the advice you received from your attorney differ from your own analysis of coverage?

Did the advice you received from your attorney differ from the claims handling standards adopted by the insurance company?

If after –

Why did you seek and receive legal advice after you had already denied the claim?

Did you seek legal advice simply to paper the file or to rubber stamp the decision you already made?

Knowledge of Plausibility

Did you know that the legal advice you received did not accurately reflect California law?

Was creative lawyering?

Provides indefensible analysis of coverage?

Provides an implausible interpretation of coverage?

Reliance

Did you rely upon the attorney’s advice to decide to deny the plaintiff’s claim?

Were you willing to reconsider your denial of the plaintiff’s claim when you knew that the attorney’s advice was incorrect?

When you learned that the attorney’s advice was incorrect, what did you do about it?

Good Faith

California regulations §2695.7(b) requires you to “immediately, but in no event more than forty (40) calendar days later, accept or deny the claim, in whole or in part. A denial shall be in writing “and shall provide . . . a statement listing all bases for such . . . denial and the factual and legal bases for each reason given. . . . [including each] specific policy provision, condition or exclusion.

Did you comply with this regulation in deciding to deny the plaintiff’s claim?

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