The Natural History of the Insurer's Liability for Bad Faith
As recently as ten years ago, an insurer's liability for bad faith was one of the legal growth stocks of that period. Having come into their own in the 1970s, both first-party and third-party bad faith claims were resulting in multi-million dollar judgments, treatises and law review articles exploring the contours of the law in these fields were being published, and - along with civil liability generally - the field seemed to be expanding without an end in sight.
The current climate is quite different. Although liability for bad faith now has an established place in insurance law, the exciting days of the late 1970s and 1980s have been left behind. My overall impression is that bad faith activity has leveled off and that liability for bad faith is no longer quite the dramatic threat to insurers - nor for most plaintiffs the potential pot of gold at the end of the rainbow - that it may once have seemed to be. I also believe that at present the probability of substantial doctrinal expansion in this field is low. In this Paper, I want to explore some of the reasons that the law of liability for the insurer's bad faith now stands where it does and to make some observations about the significance of the present condition of bad faith law for the future of this field.