Bad Faith vs. Injury

Precedent History of Bad Faith

 

BAD FAITH as defined by Black’s Law, Third Edition, 1933

Bad faith, the opposite of “good faith” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s right or duties but by some interest or sinister motive.

SEE:

  • Hiigenberg v. Northup, 134 Ind. 92, 33 N. E. 780
  • Morton v. Immigration Ass’n, 79 Ala. 617; Coleman v. Billings, 89 111. 191
  • Lewis v. Holmes, 109 La. 1030, 34 South. 66, 61 L. R. A. 274
  • Harris v. Harris, 70 Pa. 174; Penn Mut. L. Ins. Co. v. Trust Co., 73 Fed. 653, 19 C. C. A. 310, 38 L. R. A. 33, 70
  • Insurance Co. v. Edwards, 74 Ga. 230

BAD FAITH as defined by Black’s Law, Ninth Edition, 2009

1.  Dishonesty of belief or purpose <the lawyer filed the pleading in bad faith>. Also termed mala fides (mal-d-fI-deez).

“A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evaSion of the spirit of the bargain, lack of diligence and slacking off, Willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.” Restatement (Second) of Contracts § 205 emt. d (1979).

Commentary:

First what’s interesting here is that Black’s Law, the black letter to the defined word in law, has been around since its first edition in 1891. In fact it’s been published 10-times; 1891, 1910, 1933, 1968, 1979, 1990, 1999, 2004, 2009 and 2014 and yet it wasn’t till  the Third Edition in 1933 where “Bad Faith” first appeared. And in its noted cases cited, one stood out…Cotton States Life Insurance Co. v. Edwards 74 Ga. 230 (1855).  Bad faith was defined in 1933 using a case involving and insurance company and in 2009 using an attorney in reference thereof.

In referencing ‘Bad Faith” in 1963 the Supreme Court of Georgia reversed a decision “Life Insurance Company of Georgia v. Burke, 219 Ga. 214 (132 SE3d 737) (1963)” of the Georgia Appellate Court in “Life Ins. Co. of Ga. v. Burke, 108 Ga. App. 386 (133 SE2d 49) (1963)” in part … construing the term “bad faith” by referencing the court in Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220, which ruled that “bad faith” means “any frivolous or unfounded refusal in law or in fact” to comply with the terms of the contract under the conditions imposed by statute. This construction of the term “bad faith” has been cited and applied by the Georgia Court of Appeals in many cases. Here are I few:

  • Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 466 (58 SE 93)
  • American Ins. Co. v. Bailey & Musgrove, 6 Ga. App. 424 (7) (65 SE 160)
  • Georgia Life Ins. Co. v. McCranie, 12 Ga. App. 855, 857 (78 SE 1115)
  • New York Life Ins. Co. v. Watson, 48 Ga. App. 211, 214 (172 SE 602)
  • Bankers Health &c. Ins. Co. v. Brown, 49 Ga. App. 294 (175 SE 387)
  • Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 744 (179 SE 256)
  • Liberty Mutual Ins. Co. v. Atlantic C. L. R. Co., 66 Ga. App. 826, 834 (19 SE2d 377)
  • Mutual Life Ins. Co. of New York v. Barron, 70 Ga. App. 454, 460 (28 SE2d 334)
  • Independent Life &c. Ins. Co. v. Thornton, 102 Ga. App. 285, 292 (115 SE2d 835)

Pain

Regarding this case in particular and others, trial attorneys face the problem of accurately differentiating individuals with valid complaints of pain from ones who are malingering, faking or exaggerating.  Insurance companies frequently deny workers’ compensation claims, by saying the claim is exaggerated or fraudulent, without objective documentation to reject the claim. This “bad faith” behavior on the part of the insurance carriers and their attorneys are subject to treble damages award in New York and several other states which have followed New York’s lead since the Amalfitano v. Rosenberg case in 2009.

To address the issue of pain as in this case, a former faculty members at Johns Hopkins University School of Medicine developed a vallidity test – the MCD Pain Validity Test™ which was originally validated on 796 chronic pain patients, with results published in seven peer-reviewed articles in medical journals (See Validating the Complaint of Pain, The PVT Forensic Examiner, PVT – n83, and PVY in Women).

As documented in the most recent of these articles, the Internet version of the Pain Validity Test (PVT ™) can predict which chronic pain clients will have moderate or severe abnormalities on objective medical tests with 95% accuracy (objective pain patients) (See Article on Organic Pathology on Chronic Pain). Research shows that 87% to 94% of all claimants have a valid complaint of pain, and will have abnormal medical testing documenting their injury, which can be used as evidence in court (See Overlooked Diagnoses in Chronic Pain).

Likewise, the Pain Validity Test can predict which chronic pain client will have mild or no abnormalities on objective medical tests with 85% accuracy (See Validating the Complaint of Pain, The PVT Forensic Examiner, PVT – n83, PVY in Women and Article on Organic Pathology on Chronic Pain).

The PVT has been successfully used without challenge at the pre-deposition, deposition, and in trial in numerous cases in a variety of jurisdictions, in 8 states (See PVT used in Court).

Additionally, research from physicians at Johns Hopkins Hospital has shown that 40%-80% of all chronic pain patients are misdiagnosed (See Overlooked Diagnoses in Chronic Pain, Cervical Fusion for Misdiagnosed Headache and Whiplash and CRPS RSD Over diagnosed 71% of time ), not faking nor malingering, which is why they continue to remain out of work. To address this problem, a group of former staff members from Johns Hopkins Hospital developed a Diagnostic Paradigm, which gives diagnoses with a 96% correlation with Johns Hopkins Hospital physicians (See Why Chronic Pain Patients are Misdiagnosed). One of the major causes for misdiagnosis is the use of the wrong medical tests by the treating physicians (See Misdiagnosed and Chronic Pain).

Trial attorneys may register to use these two tests at Maryland Clinical Diagnostics , or purchase the tests through the non-profit organization headed by the former president of the New Jersey Trial Lawyers Association, the Aletheia Institute.