Catching the White Whale — Proving Insurance Bad Faith and Recovering Punitive Damages at Trial in the United States

Abstract

On the heels of their $55.3 million insurance litigation victory in Victaulic Co. v. American Home Assurance Co. et al., Victaulic Company’s Chief Legal and Administrative Officer Mark Van De Voorde and Victaulic’s outside trial counsel Joseph D. Jean, Colin T. Kemp and G. Allen Brandt of Pillsbury Winthrop Shaw Pittman LLP, review strategies for taking an “insurance bad faith” case to trial before a jury in the United States. The article broadly outlines the importance of appropriate liability insurance to multi-national corporations, and the means by which in-house counsel can manage business risk through insurance and by working with their insurers. If and when, however, the relationship with an insurer breaks down, in-house counsel must lead their clients in preparing for trial. That takes planning and preparation, however. Based in part on their experience in the Victaulic litigation, the authors explain how to get ready for trial, outlining strategies for success, including utilizing the jury instructions and applicable law as guides, using the discovery process to marshal the evidence, and advancing themes and theories to tell a good, compelling story to the jury. Along the way, the authors provide a primer on U.S. insurance jurisprudence, highlight useful resources and identify pitfalls to avoid.