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Insurance bad faith is a legal term of art unique to the law of the United States (but with parallels elsewhere, particularly Canada) that describes a tort claim that an insured person may have against an insurance company for its bad acts. Under the law of most jurisdictions in the United States, insurance companies owe a duty of good faith and fair dealing to the persons they insure. This duty is often referred to as the "implied covenant of good faith and fair dealing" which automatically exists by operation of law in every insurance contract. If an insurance company violates that covenant, the insured person (or "policyholder") may sue the company on a tort claim in addition to a standard breach of contract claim. The contract-tort distinction is significant because as a matter of public policy, punitive or exemplary damages are unavailable for contract claims, but are available for tort claims. In addition, consequential damages for breach of contract are traditionally subject to certain constraints not applicable to tort actions (see ''Hadley v. Baxendale''). The result is that a plaintiff in an insurance bad faith case may be able to recover an amount ''larger'' than the original face value of the policy, if the insurance company's conduct was particularly egregious. ==Historical background== Most laws regulating the insurance industry in the U.S. are state-specific. In 1869, the Supreme Court of the United States held, in ''Paul v. Virginia'' (1869), that United States Congress did not have the authority to regulate insurance under its power to regulate commerce.〔''Paul v. Virginia'', 75 U.S. (8 Wall.) 168, 19 L.Ed. 357 (1869).〕 In the 1930s and 1940s, a number of U.S. Supreme Court decisions broadened the interpretation of the Commerce Clause in various ways, so that federal jurisdiction over interstate commerce could be seen as extending to insurance. In March 1945, the United States Congress expressly reaffirmed its support for state-based insurance regulation by passing the McCarran-Ferguson Act (found at 15 U.S.C. §§ 1011-15) which held that no law that Congress passed should be construed to invalidate, impair or supersede any law enacted by a State regarding insurance. As a result, nearly all regulation of insurance continues to take place at the state level. Such regulation generally comes in two forms. First, each state has an "Insurance Code" or some similarly named statute which attempts to provide comprehensive regulation of the insurance industry and of insurance policies, a specialized type of contract. State insurance codes generally mandate specific procedural requirements for starting, financing, operating, and winding down insurance companies, and often require insurers to be overcapitalized (relative to other companies in the larger financial services sector) to ensure that they have enough funds to pay claims if the state is hit by multiple natural and man-made disasters at the same time. There is usually a Department of Insurance or Division of Insurance responsible for implementing the state insurance code and enforcing its provisions in administrative proceedings against insurers. Second, judicial interpretation of insurance contracts in disputes between policyholders and insurers takes place in the context of the aforementioned insurance-specific statutes as well as general contract law; the latter still exists only in the form of judge-made case law in most states. A few states like California and Georgia have gone farther and attempted to codify all of their contract law (not just insurance law) into statutory law. Early insurance contracts were considered to be contracts like any other, but first English (see uberrima fides) and then American courts recognized that insurers occupy a special role in society by virtue of their express or implied promise of peace of mind, as well as the severe vulnerability of insureds at the time they actually make claims (usually after a terrible loss or disaster). In turn, the development of the modern cause of action for insurance bad faith can be traced to a landmark〔Eugene R. Anderson, Jordan S. Stanzler, & Lorelie S. Masters, ''Insurance Coverage Litigation'' (New York: Aspen Publishers, 2009 supp.), § 11.04 at 11-13 to 11-16.〕 decision of the Supreme Court of California: ''Comunale v. Traders & General Ins. Co.'', 50 Cal. 2d 654, 328 P.2d 198, 68 A.L.R.2d 883 (1958).〔http://online.ceb.com/CalCases/C2/50C2d654.htm〕 ''Comunale'' was in the context of third-party liability insurance, but California later expanded the same rule to first-party fire insurance in ''Gruenberg v. Aetna Ins. Co.'', 9 Cal. 3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032 (1973).〔http://online.ceb.com/CalCases/C3/9C3d566.htm〕 During the 1970s, insurers argued that these early cases should be read as holding that it was bad faith to deny a claim only when the insurer already ''knew'' that it had no reasonable basis for denying the claim (i.e., when the insurer had already acquired information showing a potentially covered claim and denied it anyway). In other words, they contended that only ''intentional'' mistreatment of an insured should be actionable in bad faith, versus merely grossly ''negligent'' claim handling. In 1979, California's highest court refuted that argument and further expanded the scope of the tort by holding that inadequate ''investigation'' of a claim was actionable in tort as a breach of the implied covenant of good faith and fair dealing.〔''Egan v. Mutual of Omaha Ins. Co.'' (1979) 24 Cal.3d 809.〕 Other state courts began to follow California's lead and held that a tort claim exists for policyholders that can establish bad faith on the part of insurance carriers. According to Stephen S. Ashley's treatise, ''Bad Faith Actions: Liability and Damages'', 2nd ed. (Eagan, MN: Thomson West, 1997), §§ 2.08 and 2.15, courts in nearly thirty states recognized the claim by the late 1990s. In nineteen states, state legislatures became involved and passed legislation that specifically authorized bad faith claims against insurers. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Insurance bad faith」の詳細全文を読む スポンサード リンク
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