Our Kentucky Supreme Court just upheld a $3.45 million dollar jury award which included $2.5 million in punitive damages after Indiana Insurance Co.'s client proved they acted in bad faith while representing him in a "toxic tort" lawsuit.
The Kentucky Supreme Court in Ind. Ins. Co. v. Demetre, 2015-SC-000107-DG (8/24/17) affirmed the Campbell County Circuit Court following a jury trial on Demetre's lawsuit alleging breach of contract, violation of the Kentucky Unfair Claims Settlement Practices Act (UCSPA) and the Kentucky Consumer Protection Act (KCPA). The toxic tort claim against Demetre was filed by a neighbor who alleged damages caused from exposure to petroleum waste. Demetre was the owner of a parcel of land that had been formerly operated as a gas station until 1962 and insured by Indiana Insurance. The station's fuel tanks had been removed and the building was razed prior to his ownership.
Indiana Insurance, a member of the Liberty Insurance Group, was focused on avoiding coverage for their client, Mr. Demetre. Indiana "defended" him under a "reservation of rights," however, they apparently did little to actually defend their client. Both the Court and the jury found that Indiana Insurance failed to investigate the claims of the neighbors and instead focused their efforts on whether their insured, Demetre, had violated the policy, or alternatively, failed to disclose information to Indiana Insurance.
The neighbors claim was ultimately settled for a "nuisance value" of $165,000.00. That settlement alone did not save Indiana Insurance from a bad faith claim. The 72 year old Demetre testified that the case had taken a heavy emotional toll on his life. He sought emotional damages as a result.
Indiana Insurance argued that their insured could not recover damages as he presented no expert opinion at trial to evidence his claim for emotional damages. The Supreme Court ruled that expert testimony is not required in a "bad faith" claim, and clarified that expert opinion is only required to establish emotional damages in a negligent infliction, or intentional infliction of emotional distress claim.