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August 26, 2014

A few years ago, I published an article that questioned whether Alabama’s tort of bad faith was becoming more prevalent on a theory referred to by Alabama courts as an “abnormal bad faith” action. See, “Is Abnormal Becoming the New Normal in Alabama?” Mealey’s Litigation Report: Insurance Bad Faith, Vol. 22, #20 (February 26, 2009).

As mentioned in the article, the tort of bad faith was first recognized by the Supreme Court of Alabama more than 30 years ago. Back then, the traditional tort of bad faith was only actionable if the claimant could prove that he was entitled to a directed verdict on the question of whether the insurer breached the insurance contract when it denied the claim.

Over the years that followed, Alabama courts began to identify situations involving bad faith that did not quite fall into the category of bad faith that was first recognized by the Court. These situations became known as “abnormal” bad faith actions and included claims where the insurer “intentionally or recklessly failed to properly investigate the claim,” or dealt with claims where the insurer “created” a factual issue after the denial, and so forth. More recent reported opinions showed a willingness to allow a plaintiff to move his bad faith case forward by alleging an alternative “either/or” theory of bad faith. Either the insurer breached the contract in bad faith, or it failed to investigate in bad faith. This culminated in the Court expressly finding that an action for “abnormal” bad faith could exist even where the “normal” bad faith claim was lacking as a matter of law.

Fortunately, the Supreme Court of Alabama now seems to have backed away from this position. Recently, the Court issued State Farm Fire and Cas. Co v. Brechbill, 2013 WL 5394444 (Ala. Sept. 27, 2013), wherein the Court directly addressed the issue of whether a claim for “abnormal” bad faith could still exist where there was a factual dispute as to whether the insurer wrongfully denied the claim. The Court found that Alabama’s tort of bad faith is a singular tort with two methods of proof – either the plaintiff demonstrates that it is entitled to a directed verdict that the insurer breached its contract with the insured, or that the insurer failed to investigate the claim in bad faith. In fact, the Court noted in a footnote that it would refrain from using the terms “abnormal” and “normal” when referring to bad faith cases, and instead “use the more descriptive terms ‘bad-faith refusal to pay’ and ‘bad faith refusal to investigate’.” Brechbill, at fn 1.

Most importantly, the Court held that all plaintiffs alleging bad faith must show that there was no legitimate reason for denying the claim. In other words, if the insurer can demonstrate a question of fact or show that it had a legitimate basis for denying the claim, the bad faith claim fails as a matter of law, regardless of the theory upon which it is presented.

Probably the most interesting comments from this opinion, however, came from Chief Justice Moore. He stated in a special concurring opinion that Alabama’s “judicially legislated tort” of bad faith should be abolished altogether, essentially inviting a constitutional challenge, and leaving the question of bad faith to the Alabama Legislature. It will be interesting to see if the Court actually goes this far; and even more interesting to see if the business-friendly, Republican-controlled Legislature and executive branches decide to take action if the Court does indeed abolish the tort.

So it turns out, abnormal isn’t that abnormal when it comes to bad faith in Alabama.