Insurance Bad Faith Demand Letter - Washington

INSURANCE BAD FAITH DEMAND LETTER

State of Washington

[LAW FIRM LETTERHEAD]

PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION - FOR RESOLUTION PURPOSES ONLY
PROTECTED UNDER ER 408 AND FED. R. EVID. 408

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [________________________________]

Date: [__/__/____]

[________________________________] (Insurer)
[________________________________]
[________________________________], [____] [____]

Attention: [________________________________], [Title]
Re: FORMAL BAD FAITH DEMAND — WASHINGTON LAW
Insured: [________________________________]
Claimant: [________________________________]
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Loss: [__/__/____]
Policy Limits: $[____]
Response Deadline: [__/__/____] at 5:00 p.m. Pacific Time (TIME-LIMITED DEMAND)

Dear [________________________________]:

I. INTRODUCTION

This firm represents [________________________________] ("our client") in connection with the above-referenced insurance claim arising under Washington law. This letter constitutes a formal pre-litigation demand for payment of policy benefits wrongfully withheld and a warning of [________________________________]'s ("the Company") exposure to common-law bad-faith, Insurance Fair Conduct Act ("IFCA"), and Consumer Protection Act ("CPA") remedies.

Washington has one of the most insured-protective bad faith regimes in the country. The Washington Supreme Court has held for more than four decades that "the business of insurance is one affected by the public interest" (RCW 48.01.030) and that insurers owe their insureds a "heightened, fiduciary-like" duty of good faith. Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 385, 715 P.2d 1133 (1986). The Company's conduct in this matter is a textbook violation of that duty and invites significant liability under Butler, IFCA, and the CPA.

This is a time-limited demand. The Company has until [__/__/____] at 5:00 p.m. Pacific Time to tender the full amount owed of $[____] and reach a mutually acceptable resolution. Failure to do so will trigger the formal 20-day pre-suit notice under RCW 48.30.015(8), followed by litigation in Washington Superior Court seeking the full range of statutory and common-law remedies.

II. THE WASHINGTON BAD FAITH FRAMEWORK

Washington provides four overlapping causes of action for bad-faith claim handling, each with its own elements and remedies:

A. Common Law Bad Faith (Tort)

An insurer's bad faith in handling a claim is an independent tort. Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 389, 823 P.2d 499 (1992); Tank, 105 Wn.2d at 385. The question is whether the insurer's conduct was "unreasonable, frivolous, or unfounded." Smith v. Safeco Ins. Co., 150 Wn.2d 478, 484, 78 P.3d 1274 (2003).

Presumed Harm. Once bad faith is proven, harm is presumed, and the burden shifts to the insurer to rebut the presumption. Butler, 118 Wn.2d at 390. In egregious cases, the insurer is estopped from denying coverage. Butler, 118 Wn.2d at 394; Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 951 P.2d 1124 (1998).

Independent Tort Even Without Coverage. First-party bad faith is actionable "even where no coverage exists," because the insurer's duty to investigate and evaluate is independent of coverage. Coventry Associates v. American States Ins. Co., 136 Wn.2d 269, 279–80, 961 P.2d 933 (1998).

Remedies include:

• Full policy benefits
• Consequential damages (economic loss caused by the bad-faith handling)
• General tort damages
• Emotional distress damages where proven
• Coverage by estoppel in proper cases
• Attorneys' fees under Olympic Steamship

B. Insurance Fair Conduct Act — RCW 48.30.015

IFCA was enacted by Washington voters (Referendum 67) in 2007 and is codified at RCW 48.30.015. It permits a first-party claimant "unreasonably denied a claim for coverage or payment of benefits" to recover:

1. Actual damages sustained (including the full policy benefits);
2. Treble damages at the court's discretion, up to three times actual damages (RCW 48.30.015(2));
3. Reasonable attorneys' fees and litigation costs, including expert fees (RCW 48.30.015(3)); the fee award is mandatory when the insured prevails.

RCW 48.30.015(5) provides that violation of any listed regulation — including WAC 284-30-330, -350, -360, -370, and -380 — is an independent ground for IFCA treble damages and mandatory fees.

Note: The Washington Supreme Court in Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669 (2017), clarified that a violation of a WAC regulation alone does not create an IFCA cause of action absent an unreasonable denial of benefits or coverage. A regulatory violation combined with an unreasonable denial, however, remains the strongest IFCA posture.

20-Day Pre-Suit Notice. RCW 48.30.015(8) requires written notice to the insurer and the Washington Office of the Insurance Commissioner at least 20 days before filing an IFCA action. This letter is a precursor to that formal notice.

C. Consumer Protection Act — RCW 19.86

A single violation of an unfair-claims-settlement regulation in Chapter 284-30 WAC constitutes a per se unfair or deceptive act under the CPA. Indus. Indem. Co. of the Nw. v. Kallevig, 114 Wn.2d 907, 923, 792 P.2d 520 (1990); Stevens v. Brink's Home Sec., Inc., 162 Wn.2d 42 (2007). Elements: (1) unfair or deceptive act, (2) in trade or commerce, (3) public interest impact, (4) injury to business or property, (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (1986).

CPA remedies: actual damages, treble damages capped at $25,000 (RCW 19.86.090), attorneys' fees, costs, and injunctive relief.

D. Statutory Duty of Good Faith — RCW 48.01.030

RCW 48.01.030 codifies the duty of good faith and provides a distinct regulatory enforcement mechanism through the Office of the Insurance Commissioner.

III. POLICY AND COVERAGE

A. Policy Details

B. Coverage Analysis

The policy provides coverage for [________________________________]. The loss clearly falls within the insuring agreement, and no exclusion applies. Washington construes insuring agreements broadly and exclusions narrowly against the insurer. Quadrant Corp. v. Am. States Ins. Co., 154 Wn.2d 165 (2005); Weyerhaeuser Co. v. Commercial Union, 142 Wn.2d 654 (2000).

Having acknowledged coverage (or having failed to timely deny under WAC 284-30-380), the Company owes the following affirmative duties under Washington law:

• Full, fair, and objective investigation (Tank, 105 Wn.2d at 386)
• Equal consideration of insured's interests (Tank, 105 Wn.2d at 388)
• Timely communication (WAC 284-30-330(2), -360)
• Complete investigation within 30 days (WAC 284-30-370)
• Acceptance or denial within 15 working days of full proof (WAC 284-30-380)
• Good faith effort at prompt, fair, and equitable settlement (WAC 284-30-330(6))
• Honest and transparent explanation of coverage decisions (WAC 284-30-330(13))
• Refrain from compelling litigation through unreasonable offers (WAC 284-30-330(7))

IV. FACTUAL BACKGROUND

A. The Underlying Loss

On [__/__/____], [________________________________ DETAILED NARRATIVE ________________________________]

B. Chronological Timeline of Bad Faith Conduct

V. SPECIFIC BAD FAITH CONDUCT

The Company's handling of this claim constitutes bad faith under Butler and Tank and violates multiple WAC 284-30 regulations:

A. Unreasonable Delay — WAC 284-30-330(2), -360, -370, -380

• [________________________________]
• [________________________________]
• [________________________________]

The Company has failed to meet the mandatory claim-handling timeframes of Chapter 284-30 WAC. Each missed deadline is a per se unfair claims practice and an independent ground for CPA/IFCA liability.

B. Inadequate Investigation — WAC 284-30-330(3), (4)

• [________________________________]
• [________________________________]
• [________________________________]

Under Tank, a first-party insurer must conduct a "full, fair, and objective investigation" and give equal consideration to its insured's interests. The Company's investigation falls far short.

C. Unreasonable Valuation / Lowball Offers — WAC 284-30-330(6), (7)

Per WAC 284-30-330(7), compelling an insured to litigate by offering substantially less than amounts ultimately recovered is a per se unfair practice.

D. Misrepresentation of Policy Provisions — WAC 284-30-330(1)

The Company has misrepresented policy terms and applicable Washington law by: [________________________________].

E. Failure to Provide Basis for Denial — WAC 284-30-330(13)

The Company has failed to provide a "reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law" for its denial or reduced offer.

F. Failure to Communicate — WAC 284-30-330(2)

• [________________________________]
• [________________________________]

G. Inadequate Reserves / Improper Pressure

On information and belief, the Company's reserves on this claim have been manipulated for litigation-avoidance purposes rather than to reflect exposure, a further indicator of bad faith.

VI. STATUTORY VIOLATIONS

A. WAC 284-30-330 — Checklist of Violations

The Company's conduct independently violates the following subsections of WAC 284-30-330:

☐ (1) Misrepresenting pertinent facts or policy provisions
☐ (2) Failing to acknowledge and act promptly on communications
☐ (3) Failing to adopt reasonable investigation standards
☐ (4) Refusing to pay claims without reasonable investigation
☐ (5) Failing to affirm or deny coverage within a reasonable time
☐ (6) Not attempting good-faith settlement when liability is reasonably clear
☐ (7) Compelling the insured to litigate through unreasonable offers
☐ (8) Settling claims for less than insureds reasonably believe owed
☐ (9) Attempting to settle claims on the basis of altered applications
☐ (10) Making claim payments without statement of coverages
☐ (11) Delay by requesting preliminary claim reports and then duplicative proof of loss
☐ (12) Failing to settle promptly under one coverage to influence settlement under another
☐ (13) Failing to promptly provide a reasonable explanation for denial / compromise
☐ (14) Failing to honor drafts within 3 working days
☐ (15) Misuse of Medical Information Bureau data
☐ (17) Invoking appraisal without a good-faith settlement effort
☐ (18) Negotiating directly with a represented insured

B. WAC 284-30-360, -370, -380 — Claim Handling Timeline Violations

VII. DAMAGES UNDER WASHINGTON LAW

A. Contract Damages

B. Consequential Damages

Washington recognizes tort damages for consequential loss caused by bad-faith handling:

C. Emotional Distress Damages

Emotional distress damages are recoverable in first-party bad-faith tort actions in Washington where supported by evidence. Anderson v. State Farm, 101 Wn. App. 323 (2000). Our client has suffered [________________________________].

Estimated emotional distress damages: $[____]

D. IFCA Treble Damages (RCW 48.30.015)

If the Company's unreasonable denial is proven at trial, the court has discretion to treble actual damages:

• Actual damages: $[____]
• Maximum IFCA treble: $[____] (3×)

E. CPA Damages (Capped Treble)

Per-claim CPA treble damages are capped at $25,000 but support mandatory attorneys' fees. Hangman Ridge, 105 Wn.2d 778.

F. Olympic Steamship Attorneys' Fees

Under Olympic Steamship Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991), an insured who is compelled to sue to obtain the benefit of coverage is entitled to recover attorneys' fees — even absent a contract or statutory basis. Our firm's fees in pursuing this claim are recoverable.

G. Punitive Damages

Washington does not recognize common-law punitive damages. Instead, IFCA treble damages and CPA treble damages serve a similar deterrent function and will be vigorously pursued.

H. Prejudgment Interest

Prejudgment interest is recoverable on liquidated amounts from the date payment was due, at the statutory rate of 12% per annum (RCW 19.52.010).

VIII. DEMAND

A. Monetary Demand

Pay the total sum of $[____] as follows:

B. Settlement Terms

• Full release of the Company by our client in exchange for payment
• Confidentiality (optional — subject to negotiation; confidentiality provisions may not impair public OIC reporting)
• No requirement that our client withdraw any OIC complaint already filed (IFCA permits parallel regulatory proceedings)
• Correction of any adverse data reported by the Company to CLUE, ISO ClaimSearch, or similar industry databases

IX. TIME-LIMITED NATURE AND IFCA NOTICE WARNING

THIS DEMAND EXPIRES AT 5:00 P.M. PACIFIC TIME ON [__/__/____].

Consequences of Non-Acceptance

If the Company fails to tender the full demanded amount by the deadline:

1. Formal 20-day IFCA notice under RCW 48.30.015(8) will be served on the Company and filed with the Washington Office of the Insurance Commissioner (P.O. Box 40256, Olympia, WA 98504-0256). The OIC publishes IFCA notices monthly; this will become part of the Company's public regulatory record.

2. Litigation will be filed in the Superior Court of [________________________________] County, Washington, asserting:
   - Breach of contract
   - Common-law bad faith (tort)
   - Violation of IFCA — RCW 48.30.015
   - Violation of CPA — RCW 19.86.020
   - Breach of statutory duty of good faith — RCW 48.01.030

3. Our client will seek:
   - Full policy benefits
   - Prejudgment interest at 12%
   - Consequential and emotional distress damages
   - IFCA treble damages (up to 3x actual)
   - CPA treble damages (capped at $25,000 per claimant)
   - Coverage by estoppel where available (Butler)
   - Mandatory Olympic Steamship and IFCA attorneys' fees and expert fees
   - Costs

4. Regulatory complaints will be filed with:
   - Washington Office of the Insurance Commissioner (market conduct exam may follow)
   - NAIC Complaint Database

X. DOCUMENT PRESERVATION NOTICE — CEDELL

This letter constitutes formal notice to preserve all documents and electronically stored information relating to this claim. Under Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 295 P.3d 239 (2013), the attorney-client privilege is presumptively waived as to the insurer's claim file and communications between claims personnel and counsel in first-party bad-faith litigation. The insurer may assert privilege only upon an in camera showing that counsel was performing a function outside the quasi-fiduciary claim-handling role.

Preserve all of the following:

• Complete claim file (live and archived, including deleted notes)
• Adjuster activity logs, diaries, and notes
• Reserve history and reserve change documentation
• Internal communications (email, Teams, Slack, instant messenger, voicemail)
• Supervisor approvals, round tables, and QA reviews
• Claims-handling manuals, guidelines, training materials
• SIU files (if any)
• All outside vendor reports (IME, peer review, engineering, bill review)
• Defense counsel communications (Cedell — presumptively discoverable)
• Telephone recordings and transcripts
• Underwriting file and policy forms
• Market conduct audit reports

Spoliation sanctions will follow any destruction, including adverse inferences under Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892 (2006).

XI. CONCLUSION

The Company's handling of this claim is precisely the conduct that Butler, IFCA, and the CPA were enacted to deter. Washington law gives insureds some of the strongest remedies in the nation for insurer bad faith, and our firm is fully prepared to pursue them. We urge the Company to use this opportunity to resolve the matter fairly before the exposure escalates to IFCA treble damages, Olympic Steamship fees, and public OIC scrutiny.

Please direct all further communications to the undersigned.

Respectfully submitted,

[LAW FIRM NAME]

By: _______________________________
[ATTORNEY NAME], WSBA No. [____]
[________________________________]
[________________________________], WA [____]
Tel: [____]
Email: [________________________________]

Counsel for [________________________________]

ENCLOSURES:

• Policy declarations page and all endorsements
• Proof of loss / claim submission
• Correspondence chronology with the Company
• Damage and valuation documentation
• Expert and contractor reports
• Evidence of consequential damages

CC:

• [Client]
• Washington Office of the Insurance Commissioner (via complaint upon expiration)

Sources and References

• RCW 48.01.030 — Duty of good faith: https://app.leg.wa.gov/rcw/default.aspx?cite=48.01.030
• RCW 48.30.010 — Unfair practices: https://app.leg.wa.gov/rcw/default.aspx?cite=48.30.010
• RCW 48.30.015 — Insurance Fair Conduct Act: https://app.leg.wa.gov/rcw/default.aspx?cite=48.30.015
• RCW 19.86.020 — CPA unfair acts: https://app.leg.wa.gov/rcw/default.aspx?cite=19.86.020
• RCW 19.86.090 — CPA remedies: https://app.leg.wa.gov/rcw/default.aspx?cite=19.86.090
• RCW 19.52.010 — 12% prejudgment interest rate: https://app.leg.wa.gov/rcw/default.aspx?cite=19.52.010
• WAC 284-30-330 — Unfair claims settlement practices: https://app.leg.wa.gov/wac/default.aspx?cite=284-30-330
• WAC 284-30-360 — Acknowledgment: https://app.leg.wa.gov/wac/default.aspx?cite=284-30-360
• WAC 284-30-370 — Prompt investigation: https://app.leg.wa.gov/wac/default.aspx?cite=284-30-370
• WAC 284-30-380 — Prompt, fair, equitable settlement: https://app.leg.wa.gov/wac/default.aspx?cite=284-30-380
• Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 823 P.2d 499 (1992)
• Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 715 P.2d 1133 (1986)
• Coventry Associates v. American States Ins. Co., 136 Wn.2d 269, 961 P.2d 933 (1998)
• Smith v. Safeco Ins. Co., 150 Wn.2d 478, 78 P.3d 1274 (2003)
• Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 295 P.3d 239 (2013)
• Indus. Indem. Co. of the Nw. v. Kallevig, 114 Wn.2d 907, 792 P.2d 520 (1990)
• Olympic Steamship Co. v. Centennial Ins. Co., 117 Wn.2d 37, 811 P.2d 673 (1991)
• Stevens v. Brink's Home Sec., Inc., 162 Wn.2d 42 (2007)
• Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (1986)
• Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 951 P.2d 1124 (1998)
• Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669 (2017)
• St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 165 Wn.2d 122 (2008)
• Washington Office of the Insurance Commissioner: https://www.insurance.wa.gov
• OIC Consumer Advocacy: 1-800-562-6900
• IFCA Notice Filing: https://www.insurance.wa.gov/laws-rules/insurance-fair-conduct-act-ifca
• Published IFCA Notices Log: https://www.insurance.wa.gov/notices-potential-lawsuits-against-insurers-under-insurance-fair-conduct-act