WHAT CAN A PERSON EXPECT IF THEIR CLAIM IS NOT SETTLED AND A LAWSUIT IS FILED?
Although a lot of work can go on behind the scenes before a lawsuit is filed, sometimes insurance companies and the responsible parties aren’t reasonable. This leaves a client in the position of deciding what to do – settle or file a lawsuit. The litigation process means the formal legal process of resolving disputes within the court system. If a lawsuit is filed against the responsible parties, what can you expect if you have Toon Law Firm as your lawyers? For starters, you can expect to be kept in the loop throughout the process.

THE USUAL 5 PHASES AFTER A LAWSUIT IS FILED
There are typically five phases to the litigation process: pleadings, discovery, motions, trial, and appeal. In the example of a car wreck, in order to initiate a lawsuit, we will file the Petition in state court or the Complaint in federal court. These are the initial documents wherein we make allegations against the parties involved. Depending upon the nature of the case and strategy, pleadings can range from a few pages to 50 pages or more. You will be referred to as the plaintiff. The people or companies sued will be called the defendants.

SERVING THE DEFENDANTS
Once the initial pleading is filed, we must properly deliver the lawsuit papers to the defendants. This is called obtaining service on the defendants. If we file in state court, then we will have 6 months to obtain service on the defendants pursuant to Okla. Stat. tit. 12, § 2004(I). If we file in federal court, we have 90 days to obtain service on the defendants. Rule 4, Fed. R. Civ. P. (2017). Once service is obtained on the defendants in state court, the defendants have 20 days to file their answer in state court. Okla. Stat. tit. 12, § 2012. If service is obtained on the defendants in federal court, the defendants have 21 days to answer. Rule 12, Fed. R. Civ. P. (2009).

THE DISCOVERY PHASE
Once the defendants file answers, we will move into the discovery phase of litigation. Depending on the case and the number of parties, this phase can vary in the time needed to complete the discovery tasks. In most instances, discovery begins with the parties exchanging written discovery requests called Interrogatories. This is simply a written request to answer written questions. There are also written requests called Requests for Production of Documents. This is simply written requests for a defendant to provide items such as documents, photographs, records, videos, memos, etc. Another written form of discovery is called Requests for Admission. This is simply a written request for a defendant to admit certain facts. The parties that receive the written requests have 30 days to respond. In many cases, defendants object to numerous requests for written answers and documents. In those cases, we file motions to compel with the court. A motion to compel is simply a document we file with the court wherein we request a court order against the other side to properly respond to the discovery requests.

In addition to written discovery requests, we often serve subpoenas on non-parties requesting they produce documents and information. In some cases, we will also send out Freedom of Information Act requests to any governmental agencies that may have relevant documents and information. For example, in car-wreck cases we will usually request the police report, photographs and dashcam video from the investigating agency. In medical malpractice cases, we often contact the appropriate governing boards to obtain files for the defendants, which can include nurses, doctors, and pharmacists.

Once the initial round of written discovery is completed, the next step is usually to take depositions of the parties and any witnesses (sometimes, we take depositions before the initial round of written discovery is completed.) During a deposition, an individual, or a representative of a company, is placed under oath. While under oath, the person answers questions from the opposing party’s attorney. Depositions can last anywhere from less than 1 hour to a couple of days. The length of the deposition largely depends upon the witness and the nature of the case. It is not uncommon for depositions to reveal that the defendant has illegally not provided all of the pertinent documents or information. When this happens, we can file a motion with the court to get an order forcing the defendant to properly respond to our written discovery requests.

MOTIONS FOR SUMMARY JUDGMENT
Once the discovery phase is completed, each of the parties typically file various motions. One kind of common motion is called Motion for Summary Judgment. A motion for summary judgment can be a big part of each case. In the motion, the party provides the court with the evidence they believe proves they are entitled to a ruling in their favor before the case ever goes to trial. Once all motions and responses are filed, the court will often have a hearing where each party can argue the merits of the motion and address questions from the judge. The Court will sometimes make a ruling during the hearing; other times, the ruling from the Court comes after the hearing.

THE PRE-TRIAL CONFERENCE
Depending on what happens with various motions for summary judgment, the next step is usually a pre-trial conference. At the pre-trial conference, the court will be provided with a proposed Pre-Trial Order, where both parties advise the court of the legal issues, the witnesses they intend to call, and the evidence intended to be presented. The court will also set the case for trial. In addition, the court will provide the parties with a briefing schedule to file motions to exclude various things from the trial, called motions in limine, where each side seeks to exclude witnesses and exhibits and anything else the party wants excluded from the trial. While there are routine motions in limine that are filed in every case, each case will typically have crucial pieces of evidence that one side will want to keep from the jury, arguing the evidence is not proper to be heard under Oklahoma law. For example, in a trucking lawsuit, if the truck driver has been convicted of a felony, the lawyer hired by the insurance company may file a motion to exclude the evidence. The usual argument from insurance defense lawyers is that the evidence is more prejudicial than probative.

Before trial, the court will usually hold a hearing to address the motions in limine filed by both sides. Sometimes, the court will simply make its rulings on the briefs filed by the parties without a hearing. Because the rulings on motions in limine can severely impact the way the case is presented to the jury, all parties usually prefer the court’s rulings to occur well in advance of trial. However, there are occasions where the court provides its rulings on the first day of trial or even during trial.

TRIAL
A trial can take anywhere from a day or 2 to more than a month, depending upon the complexity of the issues. Most civil trials take less than a week. The trial begins with voir dire, which is just a fancy phrase for jury selection. During jury selection, the lawyers for each party are allowed to ask potential jurors questions to determine if anyone has a bias that would prevent them from being a juror in that particular case. Once voir dire is complete and a jury is selected, both parties present their opening statements to the jury. The opening statement is where the attorney provides the jury with information as to what the case is about and what evidence they will present at trial. As the plaintiff, we have the burden of proof, so we get to present our opening first.

Once opening statements are completed, we will present our witnesses and exhibits to the jury. Each witness will be called to testify under oath. Witnesses will provide the jury with the facts through their testimony and exhibits. The defendant(s) will have the opportunity to cross-examine each witness and present exhibits. After we present all witnesses and exhibits, we inform the court that we rest our case. If the other side has any, the defendant will then present their witnesses and exhibits.

Once the defendant’s case is completed, the court will hear arguments about what specific instructions will be given to the jury. Jury instructions contain the applicable law the jury will consider in the case. Both sides typically agree on many of the jury instructions to be presented. However, each party usually has additional instructions they believe should be provided to the jury. The court makes the final decision on the set of jury instructions that will be provided. The next step is where the court reads the jury instructions to the jury.

After the jury hears the instructions, the parties provide their closing arguments. In their closing arguments, attorneys will argue how the facts and the pertinent law as provided in the jury instructions entitle the party to a verdict in their favor. Like opening statement, we will provide our closing argument first. The defendant(s) will then provide their closing argument. As the plaintiff, we will have the final word with the jury and will get to provide a second part of closing if we choose.

After closing arguments, the jury will deliberate. This is where the jury decides who wins. Like everything else in the course of litigation, deliberations can vary in how long it takes for the jury to reach a verdict. Jury deliberations in civil cases usually take less than 6 hours to reach a verdict.

This is a broad overview of the litigation process. There are a lot of things that go on behind the scenes – whether it’s to try and reach a settlement outside of litigation or whether it’s to file a lawsuit. Contact the lawyers at Toon Law Firm for a free consultation at 918.477.7884.

Under Oklahoma law, an insurance company has a duty to its insureds to handle claims fairly and in good faith. Christian v. American Home Assurance Company, 1977 OK 141, 577 P.2d 899. This duty is extremely important to Oklahomans. Because an insurance policy is a contract, the damages one can obtain under a breach of contract claim are the dollars owed under the insurance policy. In some cases, such as in a property damage case, a party may be able to recover attorney fees. In recognizing the duty of good faith and fair dealing, the Oklahoma Supreme Court has confirmed that insureds in Oklahoma may obtain tort damages when an insurance contract is breached. These tort damages include financial losses, embarrassment and emotional distress tied to the insurance company’s bad faith conduct arising out of the insurance contract.

The Christian case is the seminal case in finding that each insurance contract has an implied duty of good faith and fair dealing. In a nutshell, the insurance company’s conduct in handling an insured’s claim must be reasonable. The reasonableness of an insurer’s actions is always a question for the jury. McCorkle v. Great Atl. Ins., 1981 OK 128, 637 P.2d 583.

The duty of good faith and fair dealing requires insurance companies to act in good faith when handling claims. The duty of good faith and fair dealing also requires insurance companies to give equal consideration to the interests of their policyholders as well as their own interests. The Oklahoma Supreme Court has specifically recognized the duty of good faith and fair dealing does not extend to third parties who are strangers to the insurance contract. Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907. The most likely scenario occurs when a person hits you and is at fault for a wreck. In Oklahoma, the at-fault party’s insurance carrier does not owe a duty of good faith and fair dealing to a person or entity that is not an insured under the insurance policy.

In Badillo v. Mid Century Ins. Co., the Oklahoma Supreme Court recognizes the insurer is a fiduciary to an insured. 2005 OK 48, 121 P.3d 1080. When dealing with a third party claim against an insured, the insurance company’s “duty of good faith and fair dealing includes the duty to act in a diligent manner in relation to the investigation, negotiation, defense and settlement of claims made against the insured.” Id. at ¶ 36.

The Badillo case includes the Oklahoma Supreme Court stating, “The duty to inform the insured of settlement opportunities is one of the duties subsumed within the duty of good faith owed by an insurer to an insured. Although failure to so inform does not automatically establish breach of the duty of good faith and fair dealing, it is one factor the jury may consider in deciding whether the insurer acted in violation of the duty of good faith and fair dealing.” Id. at ¶ 36

The key components of treating the insured person or insured company fairly are to promptly investigate, promptly evaluate and promptly pay the claims of the insureds. Buzzard v. Farmers Insurance Co., Inc., 1991 OK 127, 824 P.2d 1105. While the definition of what is prompt depends upon the specific facts of each case, the insurance company must be proactive in its investigation and evaluation into the facts of each claim. The insurance company must promptly pay what it owes. The trial lawyers at Toon Law Firm handle many cases against insurance companies where the insurance companies are liable for not promptly investigating, evaluating, and paying. We have recovered millions of dollars against insurance companies for failing to promptly investigate, evaluate and pay what it owed.

In recent years, the Oklahoma courts have continued to clarify and expand the law regarding insurance company bad faith. In Burch v. Allstate Insurance Co., the Oklahoma Supreme Court holds that Uninsured Motorist Coverage (“UM”) is “first dollar coverage.” 1998 OK 129, 977 P.2d 1027. The purpose of UM coverage is to provide insurance in the event a person causes a wreck and either does not have enough insurance or does not have any insurance. This is coverage afforded to you, the insured, for which you pay premiums. In Burch, the Oklahoma Supreme Court finds that the insurance company must perform an independent investigation into an insured’s claim for UM benefits. The insurance company cannot rely upon the third party’s insurance carrier to determine what the damages total. In other words, the insurance company risks being sued for breach of contract and bad faith for sitting back and being lazy instead of proactively handling the insured’s claim.

Once the UM insurance carrier completes its investigation, it must pay from dollar one. This means that even if the third party has insurance coverage, the UM carrier must pay the value of the claim up to the limits if the third party has not paid. The UM carrier can then seek reimbursement from the at fault party. This is refered to as substituting payment. Many insurance adjusters unfortunately do not understand this concept due to lack of quality training by the insurance company. Sometimes insurance adjusters understand the concept, but literally choose to ignore the insurance company’s obligations under Oklahoma law. Many other states do not require the UM carrier to act until the at fault party pays its limits.

Oklahoma has very strong laws to protect insured people and insured businesses with the steady expansion of policyholder rights and protections. Our state’s courts and legislature provide protection so insurance companies can be held accountable for violating their duty of good faith and fair dealing. Do you have questions about insurance company bad faith in Oklahoma and want answers? Contact the insurance company bad faith lawyers of Toon Law Firm at 918.477.7884 for a free consultation to see how we can help you.