Do I need to have an expert for an auto insurance bad faith claim? 

Answer: The Tenth Circuit thinks the jury can understand bad faith without an expert. The cases around the country are in conflict. See: Neal v. Farmers, 582 P.2d 980, 987-88 (Cal. 1978): Testimony proper. Contra: Kooyman v. Farm Bureau, 315 N.W.2d 30, 37 (Iowa 1982); Hart-Anderson v. Hauck, 748 P.2d 937 (Mont. 1988).

Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 940-41 (10th Cir. 1994): Not error to exclude expert testimony in bad faith case where witness not timely listed. “Where as here expert testimony is offered on an issue that a jury is capable of assessing for itself, it is plainly within the trial court’s discretion to rule that testimony inadmissible because it would not even marginally ‘assist the trier of fact,’ while it must be viewed as ‘needless presentation’ (Fed.R.Evid. 403)....”

I have a bad faith action in state court and just received notice of removal (there is diversity jurisdiction). The Defendant never answered nor filed a responsive pleading in state court. Can I file a dismissal w/o prejudice pursuant to Rule 41 and get the benefit of savings statute? Client suing insurance company for "walking" liability policy with agent accepting partial payment allowing client to pay out the balance. This arrangement was apparently accepted by company until she had a wreck. She was sued and got a judgment against her which carrier will not pay.

Answer: You can dismiss without prejudice without leave of court only before defendant files and answer or other responsive pleading, either in state or federal court. However, I don’t see how it benefits you to dismiss and refile. Your case will still be removable.

Be aware you may have a problem making this bad faith case. The rule is that the bad faith case must arise from the handling of the claim and not from the issuance of the policy. See: Peters v. American Income Life Ins. Co., 2003 OK CIV APP 62, 77 P.3d 1090.

I represent a lady who separated from her husband and moved from California to Oklahoma. She has now lived in Oklahoma for several years but she and her husband continue to purchase insurance together through agent in California. Agent aware client lives in Oklahoma as the declarations page has her Oklahoma address listed but continues to write her a California Insurance Policy. She had a wreck in Oklahoma but the defendant is underinsured, but Farmers is claiming California UM law will apply. Not sure how California law differs but I assume it must be more favorable to Farmers. Is this a Bad Faith case for writing a policy in California where agent knows insured lives in Oklahoma?

Answer: I have a bad feeling about a bad faith case from this. I think you may have to get the policy reformed to make Oklahoma, rather than California, law apply. I doubt the Supreme Court would hold there was not at least an arguable basis for Farmers claim to apply California law. The big difference in Oklahoma and California law will be that under California law, the tort-feasor’s liability limit is deducted from the policy limit, which will severely limit and maybe eliminate your recovery. Your reformation claim will in large part be based on Gentry v. American Motorist Ins. Co., 1994 OK 4, 867 P.2d 468 (Constructive fraud will justify reforming an insurance policy to cover a loss not otherwise covered, where the agent led the insured to believe the loss in question would be covered, even though the agent had no intent to defraud the insured). You also have an argument based on estoppel under Security Ins. Co. of New Haven v. Greer, 1968 OK 3, 437 P.2d 243 (Ins. Co. estopped by agent’s knowledge of hay stored on insured property to assert policy defense based on that fact). Incidentally, the California statute of limitations on a UM claim is only one year.

I have a case where my client was injured in auto accident on the job. Tortfeasor has limited coverage. My client has UM which says coverage may not apply due to exclusions in the policy relating to claims for bodily injury covered by WC.

Answer: You may have a bad faith case. The work comp exclusion from UM is invalid, as a matter of law. See: Bill Hodges Truck Company v. Humphrey, 1984 OK CIV APP 55, 704 P.2d 94: no UM offset against workers' compensation recovery. And Thrasher v. Act-Fast Labor Pool, Inc., 1991 OK 12, 806 P.2d 640: No subrogation of Workers' Compensation against UM; suit against UM carrier does not require filing election in Workers' Compensation Court. The insurance company should have known that.

Employee of Union Public Schools is enrolled in a health plan that is self insured through the School district. Can I make a bad faith case against district for failure to timely pay claims?

Answer: This will be tough. The third-party administrator will owe a duty of good faith and fair dealing only if the TPA is really heavily involved in the insurance program in the sense of participating financially in insuring the risk. See: Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, 87 P.3d 559. As for the district itself, Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276 seems to say the Governmental Tort Claim Act precludes your bad faith claim; if the district employees acted in bad faith, they are automatically outside the scope of their authority so there could be no liability of the governmental entity for insurance bad faith.