When fire destroyed Sherrill Travier’s Lincoln Park home, she filed a timely proof of loss with Auto Club, her homeowners’ insurer.
But shortly after the fire, the police visited the scene, took a whiff and thought they smelled arson. Unsurprisingly, the months crept by with no check from Auto Club.
Insurance investigations take time.
Travier lost patience and hired a lawyer, who sent Auto Club a demand letter.
Auto Club stonewalled. Travier sued. But before serving the complaint, seven months after the blaze, Travier’s attorney made several more unsuccessful payment demands.
“Remarkably,” said the Michigan Court of Appeals in Travier v. Auto Club Group Ins. Co., “Auto Club neither admitted nor denied Travier’s breach of contract averments ‘for lack of sufficient knowledge or information and [left] plaintiff to her proofs.'” That’s an interesting but valid way to deny the allegations under MCR 2.111(C)(3).
About a month later, Travier beefed up her claim that Auto Club was acting in bad faith. She alleged that Auto Club told her she would never see a dime unless she dropped her suit.
Three months later, Auto Club did an about-face, issued full payment for the actual cash value of Travier’s home and threw in the penalty interest.
Auto Club sought dismissal of Travier’s breach-of-contract and bad-faith claims. From the COA’s opinion:
Travier responded with a cross-motion for summary disposition contending that Auto Club had breached the insurance contract by failing to pay her claim within 30 days after its receipt of her proof of loss, and “that a nationally-accepted exception to the ‘American Rule’ authorizes attorney fees when a defendant, including an insurer, acts with bad faith before or during litigation.”
The trial court let the contract claim go forward and the parties settled their differences. But the trial court booted the attorney-fee claim.
The trial court had to, ruled the COA.
Michigan does not recognize an independent tort for bad faith in the handling of an insurance claim. Roberts v Auto-Owners Ins Co, 422 Mich 594, 608; 374 NW2d 905 (1985). On this basis, we must reject Travier’s argument that Auto Club’s allegedly dilatory handling of her claim entitles her to attorney fees.
Hey, wait, Travier argued on appeal, take a look at West Virginia. There, policyholders who have to sue insurance companies to get what they paid for — coverage for a loss — can collect attorney fees.
How true and how aggravating that it’s not that way in Michigan, said the COA.
While we sympathize with Travier’s frustration that adjustment of her claim consumed almost a full year, this Court has unequivocally rejected her attorney fee argument. In Burnside v State Farm Fire & Cas Co, 208 Mich App 422, 424; 528 NW2d 749 (1995), we specifically held that “the American rule precludes the recovery of attorney fees incurred as the result of an insurer’s bad-faith refusal to pay a claim.” …
Travier’s public policy arguments in favor of an exception to the American rule “have already been addressed by the Legislature by the enactment of the [Uniform Trade Practices Act, MCL 500.2001 et seq].”
Michigan’s Legislature is often accused of enacting solutions to problems that not everyone agrees actually exist.
Travier’s case illustrates a real problem. Anyone willing to bet on a legislative solution?
UPDATE (3/1/12): AAA’s attorney, James Gross, responded to this blog post with the following:
I represented the Auto Club on appeal in the Travier case, which was the subject of your recent blog, \Bad-faith attorney fee rule: Bad news for insurance plaintiff\. I am writing in order to correct some egregious factual inaccuracies and omissions in the opinion and, therefore, in your blog account.
In more than 30 years of practice, this is not the first factually skewed opinion I’ve seen from the Court of Appeals. I view such opinions as unfortunate, but probably unavoidable. However, in light of your republication of the Travier factual account to your readership, I feel compelled to set the record straight.
First, the assertion that \the months crept by with no check from Auto Club\ is false. In fact, on September 24, 2009 — one month after Plaintiff submitted her proof of loss — Auto Club issued a check for more than $13,000 for Plaintiff’s living accommodations. Between then and the end of November, Auto Club paid an additional $54,000 on the claim.
Second, Plaintiff did not hire her attorney because she \lost patience\. Although the record does not reflect the exact date she actually retained her attorney, it does show that she had him as of August 7, 2009, two weeks before she submitted her claim, while she was still being interviewed by the police in connection with the fire.
Third, ACIA did not tell Plaintiff \she would never see a dime unless she dropped her suit\. Actually, by the time Plaintiff amended her Complaint to allege bad faith, Auto Club had already paid more than 670,000 dimes.
Fourth, although it triggered the amendment of the Complaint, the basis for the bad faith claim was not the attempt to have the suit dismissed. Rather, it was the absence of a response from an attorney in Auto Club’s Legal Department — who was not adjusting the claim (which was not formally in suit) and who had, in fact, directed that it be paid — to the demand letters from Plaintiff’s attorney. At no time did Plaintiff’s attorney attempt to contact the claims representative who was adjusting the claim, either personally or through Plaintiff’s public adjuster (who was in frequent contact with the claims representative). Consequently, no sense of urgency or even impatience for payment was ever communicated to the claims representative prior to the suit being served. Even so, Auto Club paid several thousand dollars in penalty interest for the delay.
Finally, your conclusion that this case \illustrates a real problem\ is accurate but misdirected. As demonstrated by the foregoing — which is fully supported by the record — the Court of Appeals’ opinion is long on attitude but woefully short on factual accuracy. You cannot be faulted too severely for relying on the opinion to accurately reflect the case. However, let this episode be a cautionary tale. Before republishing an opinion’s factual account in the context of advocating \reforms\, you should pick up the phone and do a modicum of fact checking with the attorneys.
Thank you for your attention to this matter.